Customs, Excise and Gold Tribunal - Mumbai
Shri Ganesh Khand V.S.M. Ltd. vs Commissioner Of C. Ex. & Cus., Baroda on 3 January, 2002
Equivalent citations: 2002(141)ELT692(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. This appeal is against the order of the Commissioner who found as under:
"In the appeal filed before me, the only plea of the appellants is that they had submitted a declaration under Rule 57G on 31-12-90 declaring phosphoric acid to be an input. Therefore, the Asstt. Collector was wrong in extending credit only from 1-1-94. Since the input had already been declared on 31-12-90, credit should be extended from the above date. When the appeal was heard at Vadodara on 15-5-96, Shri S.D. Gohil, Consultant and Shri N.K. Solanki. Chief Accountant of the appellant company, reiterated the above submissions.
I have examined the submissions of the appellants. The entire proceedings in the instant adjudication order have started with the filing of declaration on 10-8-93 under Rule 57G declaring phosphoric acid to be an input in the manufacture of sugar. At no stage of the proceedings have the appellant submitted to the adjudicating authority that the input stood declared from 31-12-90. There is no reference to such a declaration of December'90 in the declaration submitted in 93. Since the appellants have not requested for grant of Modvat Credit on phosphoric acid from 31-12-90 to the Asstt. Collector though they had sufficient opportunity of doing so, the same cannot be considered at the appeal stage. The appeal is rejected."
2. Shri Gohil for the appellants, submits that the declaration dt. 31-12-90 has been ignored by the lower appellate authority and the credit has been denied for the period 31-12-90 to 31-8-93. However on question from the Bench the Id. Advocate could not show any documentary evidence of their having a claim on the credit of impugned inputs from 31-12-90. He submits that no show cause notice was issued prior to these proceedings by the Asstt. Collector; however, he relied upon the decision reported in 1998 (100) E.L.T. 460 (Tribunal) in the case of Indica chemical Industries Pvt. Ltd., v. Commissioner of C.Ex., Meerut to submit that the credit should have been given to them from 1990 on filing of their first declaration. He also relied on the decision reported in 2001 (44) RLT 103 (CEGAT-Mum) and 1998 (97) E.L.T. 66 (T) = 1997 (23) RLT 470 (CEGAT). The Id. D.R. on the other hand submits that there was no dispute between the Department and the appellant as regards these inputs prior to 10-8-93. He drew attention to the order of the Original Authority para 2 which reads as follows :-
"The said assessee had filed a Modvat credit declaration on 10-8-93 under Rule 57-G for availing credit on input 'Phosphoric Acid".
He submits that therefore question of granting the credit has to be restricted to the period as determined by the Asstt. Collector in this case and no order granting credit for any other period by the lower appellate authority can be passed.
3. I have considered the matter and found that there is an order for denial of credit with effect from 10-8-93 pursuant to which these proceedings arose, therefore no order can be passed in these proceedings for a period earlier to the period covered as they would be traveling beyond the notice. From the order impugned, it is observed that the Asstt. Collector has given reasons for his orders. Phosphoric Acid is an eligible input and eligibility of the credit will not be depended upon declaration alone, but also on other factors, like the receipt of duty paid inputs, document as prescribed under Rule 57G within the factory premises. Therefore grant of credit with effect from 31-12-90 by the Superior Tribunal without going into the other aspects of the eligibility by the lower appellate authority cannot be ordered. The Lower Authority is as much bound by the orders of the tribunal produced before me. The same orders can be produced before them for availing of Modvat credit on production of such documents and evidence as required under law.
4. Appeal dismissed.