Customs, Excise and Gold Tribunal - Delhi
M/S. Phoenix Industries Ltd. vs C.C.E., Meerut on 12 February, 2001
Equivalent citations: 2001(131)ELT82(TRI-DEL)
ORDER K.K. Bhatia, Member (T)
1. The facts in this case are that the asst. Commissioner of Central Excise, Division-II, NOIDA initiated the proceedings against the appellants on the grounds that they imported 'Mid Sole Sheets' through the Air Cargo Units, Customs House, New Delhi vide Bill of Entry No. 208312. The date of this Bill of Entry is stated to be 30.1.95. It is alleged that they availed the modvat credit amounting to Rs.55,194/- on the strength of this Bill of Entry after expiry of six months in violation of the provisions of sub-rule (5) of Rule 57G of Central Excise Rules, 1944. Accordingly, vide his Order dt. 26.9.97, the Asst. Commissioner has denied them the credit of the aforesaid amount under Rule 57-I.
2. The party filed an appeal but the Commissioner (Appeals), Ghaziabad vide his Order dt. 23.8.99, dismissed the appeal of the party upholding the above order the original authority.
3. The present appeal is against the above order of Commissioner (Appeals). I have heard Shri. S.D. Gaur, Consultant for the appellants and Shri. S.C. Pushkarna, JDR for the respondents. The Commissioner (Appeals) in his order has appended the following chart of events:
1. Date of Bill of Entry No. 208312 dt. 30.01.95
2. Date of payment of duty dt. 01.02.95
3. Objection by A.C. Cargo dt. 31.01.95
4. Release of goods by Asst. Commr. dt. 14.06.95
5. Clearance from Airport Authority dt. 16.06.95
6. Receipt in Part-I Entry (RG 23A) dt. 23.06.95
7. Credit taken in RG 23A Pt.II dt. 07.09.95
4. It would be seen from the above entries, that the Bill of Entry in the present case is dated 30.1.95 in respect of which of which the duty is paid on 1.2.95 and the custodian cleared them no 16.6.95. The credit in respect of these goods was availed by the appellants in their RG 23A Pt.II on 7.9.95. The Commissioner (Appeals) has held that the date of the document in this case is the date of payment of duty i.e., 1.2.95 and since the credit is taken by the appellants in their modvat account on 7.9.95 i.e., beyond a period of six months from the said date, the same is held to be inadmissible. The relevant provisions of sub-rule (5) of Rule 57G in this regard are reproduced below:
" (5) Credit shall also not be taken by the manufacturer after six months of the date of issue of any document specified in sub-rule (3) and where the intermediate products manufactured by the user of inputs specified under rule 57-J are received by the manufacturer, after nine months".
5. The crucial point for consideration in this case is as to what should be reckoned as the date of issue of the B/E in terms of this sub-rule. The sub-rule (3) of Rule 57G provides that no credit under sub-rule (2) shall be taken by the manufacturer unless inputs are received in the factory under the cover of any of the documents as specified. Obviously, the appellants could not have taken the credit unless the goods were received in their factory and the goods could not have been received in the factory unless they were released from the custody of the custodian - Airport Authority. Under these facts the interpretation of sub-rules (3) and (5) of Rule 57G call for harmonious interpretation. Since the goods were cleared only on 16.6.95 form the custody of the Airport authority, this date is to be reckoned for computing the period for six months for the purpose of the said sub-rule (5) or Rule 57G. The appellants have taken the modvat credit in respect of CVD paid under the impugned Bill of Entry within six months of the clearance of the imported goods from the Airport Authority. As such, there is no ground to deny them the modvat credit.
6. The appeal is thus allowed by setting aside the order passed by the lower authority with the consequential relief, in any.
(Announced and dictated in the Court)