ORDER
Archana Wadhwa, Member (J)
1. Both the appeals are being disposed of by common order as they pertain to the same disputed issue.
2. After hearing both the sides duly represented by Shri B.L. Narasimhan, ld. Advocate and Shri S. Das, ld. SDR. We find that in Appeal No. E/1589/03/NB-C, the dispute relates to the Modvat credit of differential duty of Rs. 27.61 lakhs paid by the input-manufacturer during the period March, 1995, for which a certificate under the provisions of Rule 57E was issued by the Range Superintendent on 29th March, 1995 and the credit was taken by the appellant after a period lapse of six months.
3. Taking us to the relevant provisions as the same existed during the relevant period, the ld. Advocate submits that on the date of issuance of the certificate under the provisions of Rule 57E, the same was not a specified document under Rule 57G and the time limit of six months introduced in Rule 57G on 28-6-95 did not cover the certificates issued under Rule 57E. However, with effect from 1-3-97, 57E certificate came to be specified as one of the documents under Rule 57G(3) and as such the time limit of taking the credit within a period of six months from the date issuance of this specified documents, as provided under Rule 57G(5) also came to be applied to 57E certificate. The ld. Advocate fairly agrees that in terms of ratio laid down by the Hon’ble Supreme Court in the case of Osram Surya (P) Ltd. v. Commissioner of Central Excise, Indore , the period of six months provided with effect form 1-3-95 would be applicable to all the documents specified therein even though they were issued before the said date. However, the ld. Advocate draws fine distinction between certificate issued under Rule 57E, prior to and after 1-3-97, when they were specified for the first time under Rule 57G(3) and submits that the certificates issued prior to 1-3-97 would stand on a different platform than the certificates issued after the said date. He submits that 57E certificate issued prior to the said date would not be covered by the limitation provisions of six months inasmuch as an assessee would have vested right in him to avail the credit in respect of such certificates without any time limitation.
4. Countering the arguments, the ld. SDR submits that the ratio of the Hon’ble Supreme Court decision in the case of Osram Surya (P) Ltd. is squarely applicable to the facts of the instant case and no distinction can be made between the certificates issued prior to an after the cut of date 1-3-97.
5. After considering the submission made by both the sides and after taking note of the Hon’ble Supreme Court decision, we fully agree with the ld. SDR. Once the Certificate issued under Rule 57E came to be specified documents under the provisions of Rule 37G(3), all the restrictions imposed upon such specified documents, would apply to 57E certificates also. As has been held by the Hon’ble Supreme Court such restriction, even when the same came into effect with effect from 28-6-95, would be equally applicable to the invoices issued prior to the said date. By adopting the same ratio it can be safely concluded that the restriction which was introduced in respect of 57E certificate with effect from 1-3-97 (by reason of including 57E certificates as one of the specified documents) would be equally applicable to 57E certificate issued prior to the same date. No distinction can be made between the types of certificate as suggested by the ld. Advocate. As such we agree with the view of the lower authorities that the Modvat credit taken by the appellant in the year 1998 on the basis of 57E certificates issued in 1995 is hit by the provisions of Rule 57G(5).
6. It is seen that in the second appeal the authorities below have confirmed the interest in respect of the amount of credit so availed by the appellant and have adjusted the penalty amount, which was set aside by the Commissioner (Appeals) towards interest. The appellant grievance is that they had only taken this credit as an entry in their Modvat records and have, in fact, not utilized the same till date, in which case no interest can be validly confirmed against them. The above submission made by the ld. Advocate has not been disputed by the ld. DR. As such, we are of the view that in the absence of utilization of credit, no interest can be confirmed against the appellant.
7. As a result Appeal No. E/1859/2003 is rejected and Appeal No. E/4361/04 is allowed.
(Dictated & pronounced in open Court on 12-12-2005)