Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs And Central ... vs Jalaram Wood Craft (P) Ltd. on 28 May, 2004
ORDER S.S. Sekhon, Member (T)
1. The appellants declared the product 'Veneer Board' classified under Sub-heading No. 4410.90 and claimed nil rate of duty. The sample on testing was found to be block board correctly classifiable under Sub-heading 4408.90 and duty at 20% was found to be leviable which was confirmed by the Assistant Collector after issuing show cause notice. The classification of the product has been settled by the Supreme Court in the case of Wood Craft Limited and Others. In appeal the Commissioner (Appeal) observed that benefit of modvat credit was required to be extended to the assessee and re-quantification of duty was required to be done and therefore he allowed the appeal of the assessee by way of remand for de novo adjudication.
2. Revenue has filed this appeal on the ground that classification has been decided by the Hon'ble Supreme Court under heading 4408.90 in favour of the department and benefit of modvat credit cannot be allowed when procedure to avail the same was not followed.
3. The Supreme Court in the case of Formica India Division v. Collector of Central Excise [1995 (77) ELT 511 (S.C.)] have held that when demands consequent upon rejection of claim for non-durability are made., Benefit of exemption notification if any, to be given and denying, if available on the technical ground of non-compliance with Rule 56 A. would tantamount to permitting recovery of double duty on the intermediary product. Therefore they held, in that case the proper course was to permit (sic) to avail the benefit of Rule 56A rather deny the benefit on the technical ground that the point of time when they could have done so, that is availing benefit of Rule 56A had elapsed and they could not be permitted to comply after that stage and granted the benefit of Rule 56A if the conditions were satisfied. Following this decision the Tribunal in a series of cases have held that modvat credit could not denied.
[a] 1995 (80) ELT 79 (T) [b] 1997 (91)ELT 258 (S.C.) [c] 1999 (95) ELT 78 (T) [d] 1999 (1120 ELT 949 (T) [e] 2000 (116) ELT 105 (T) [f] 2003 (159) ELT 443 (T)
4. In this view of the matter we find no reason to interfere with the orders of the Commissioner (Appeals) remanding the matter back would be re-determined the quantification. Appeal is therefore dismissed.
(Pronounced in court (sic) 28/05/2004)