Customs, Excise and Gold Tribunal - Calcutta
Stadmed Pvt. Ltd. vs Cce on 19 November, 2001
Equivalent citations: 2002(102)ECR406(TRI.-KOLKATA), 2002(149)ELT930(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
1. The appellants are engaged in the manufacture of various medicines and during the period relevant for the purpose of present appeal were availing the benefit of Modvat credit in respect of the inputs used by the appellants in the manufacture of medicines.
2. The provisions of Rule 57G relating to the procedures for taking Modvat credit were amended, vide Notification No. 28/95-CE(NT) dated 29.6.1995 laying the condition that no modvat credit would be availed by the manufacturer after six months of the date of issue of any documents specified in first proviso to its sub-rule. The effect of such amendment was that the assessee could not avail the credit of duty on the basis of the invoices which were six months old. Inasmuch as the appellants availed the credit during the period 29.6.1995 to 9.1.1996 on the basis of the invoices after a period of six months from the date of issuance of the said invoices, they were directed by their Range Superintendent to reverse the said credit having been availed in January-February, 1996 on the basis of invoices issued in the month of March, July, 1995.
3. The appellants reversed the credit of Rs. 11,43,760.75 from their RG-23 A Part II, in terms of above directions. However subsequently they claimed that the said Notification No. 28/95-CE dated 29.6.1995 was made available to the public only when the official gazette publishing the same was put on sale. Accordingly, they contended that since the said official gazette was received by them on 9th January, 1996 they would not be affected by the Notification in question for the period prior to the date of receiving the official gazette. They made a prayer to the Assistant Commissioner for granting them the permission for recrediting the debited modvat credit.
4. The Deputy Commissioner, Central Excise vide order dated 23.9.1999 did not accept the appellant's contention that the Notification in question would become effective only from the date when the publication was put on sale to the public. Appeal against the above order did not succeed before the Commissioner (Appeals). Hence the present appeal before us.
5. Shri P.K. Dutta, Advocate appearing for the appellants submits that only two issues are involved in the present appeal--(i) as to whether the Notification No. 28/95-CE would be effective from the date of publication in the official gazette that is 29.6.1995 or when the said official gazette was put on sale to the public; and (ii) whether the said Notification would be applicable tin respect of the invoices issue prior to 29.6.1995. He however fairly concedes that both issues are decided against the appellants. He submits that the earlier law laid down by the Hon'ble Supreme Court that the notification would become effective from the date when the official gazette publishing the same is put for sale to public at large has been overruled by the subsequent decision of the Hon'ble Supreme Court as . However he submits that inasmuch as the earlier order was by Division Bench of the Supreme Court, the subsequent decision given by a Bench consisting of three Judges overruling the earlier Division Bench decision is not proper and correct. As regards the second issue he submits that Larger Bench of the Tribunal in the case of Kusum Ingots and Alloys Ltd. 2000 (39) RLT 444 (CEGAT-LB) : 2000 (93) ECR 239 (T-LB) has held that after the amendment of Rule 174 vide Notification No. 28/96 dated 29.6.1996, the appellants are not entitled to take credit beyond the period of six months from the date of duty paying documents issued prior to the said amendment.
6. Shri A.K. Mondal, JDR appearing for the Revenue submits that in view of both the issues having been decided against the appellants by the Hon'ble Supreme Court and by the Larger Bench of the Tribunal, they no longer survive for decision.
7. We agree with the above submissions of the learned DR. The three Judges decision of the Supreme Court laying down that Notification becomes effective from the date of its publication in official gazette is binding on us and judicial discipline requires that the sarqe should be followed without questioning about the correctness or otherwise of the same. The second issue is also decided by the Larger Bench of the Tribunal against the appellants. As such we do not find any merit in the appeal and reject the same.
Dictated & pronounced in Court.