ORDER
G.N. Srinivasan, Member (J)
1. This is an appeal against the decision of the Collector of Central Excise & Customs, Pune made in Order-in-Original No. 16/CEX/1995 dated 6.4.1995. In the impugned order the adjudicating authority confirmed the demand of Rs. 13,47,174.69 and imposed penalty of Rs.1,00,000/- for mis-utilizing the credit and violating the provisions of rule 57F(2) and F(3) of the Central Excise Rules.
2. The facts of the case are that the appellants were engaged in the manufacture of various types of excisable goods including acid slurry and synthetic detergent powder/washing powder/ spray dried detergent powder. It would appear that the assessee were initially manufacturing only acid slurry and were availing modvat credit in respect of the inputs used in the manufacture of acid slurry. In view of the development of the business of the assessee they undertook to export spray detergent powder on their account. They filed classification list declaring the said product as their final product. They also sought permission form the jurisdictional adjudicating authority under rule 57F(2) for sending acid slurry along with certain inputs for processing to some job worker who had the facility for conversion of the said input into spray dried detergent powder. The permission was granted to the assessee. The spray detergent powder manufactured by M/s. Suprechem Enterprises, Ranipat was exported from the job worker’s premises only while one process by M/s. Kripa Chemicals was brought back by the assessee to their factory and subsequently exported. They have failed export bond. The question is whether there is a contravention of rule 57F(2) or not. No doubt show cause notice charged with the offence of violation of two points but we are concerned with violation of rule 57F(2).
3. Shri V. Sridharan, advocate, appeared for the assessee and Shri J.M. George, JDR, appeared for the department.
4. Shri Sridharan emphatically argued that in terms of the provision of rule 57F(4) the inputs which have been sent for re-processing to job worker could be brought back by them and final product would be exported and such an inputs for which credit has been utilized can be used for any other final product as mentioned in sub-para (i) of rule 57F(4). He further states that even according to the proviso to the said rule 57F(4) he is entitled to claim the refund if the final product is exported and such a refund should be paid by the department by cash.
5. Shri J.M. George, JDR, adopts the reasoning.
6. We have considered the submissions. The adjudicating authority in the impugned order at page 30 of the paper book at para 2 has held as follows:-
“The second allegation that this was done with a view of availing modvat credit scheme and concessions under rule 57F(2) and 57F(3) automatically fails once it is held that there is no mis-declaration regarding manufacture of spray dried detergent powder. Further this could not have been done with intention to avail modvat credit as in respect of exports under bond, the credit can be utilised for manufacture of similar product and if that is not possible the credit is refundable in cash. Therefore, there was no necessity for the assessee to resort to this method for availing the credit for which they could have easily got the cash refund. The permission under rule 57F(2) was rightly granted once the goods after processing were brought back to the factory for certain testing and repacking in smaller packs. Once rule 57F(2) procedure was correctly followed the question of payment of duty on acid slurry cleared under rule 57F(2) procedure does not arise.”
7. Having held above, in the subsequent paragraph the adjudicating authority tries to talk about similar product etc. We are of the view that the observation made by the adjudicating authority is wrong.
8. Rule 57F(4) contemplates utilisation of the credit in respect of the inputs for manufacture of any of the final product as indicated in F(4) clause (i). When that is the position, the question of one-to-one correlation between the input and the final product which the adjudicating authority tries to emphasize in the impugned order is wrong in law. The assessee need not take recourse to the proviso provided under rule 57F(4) at all. He can vary the words mentioned in the said provisions of rule 57F(4)(i) and can utilise production of the final product. In this connection we also rely on the judgment of the Tribunal in the case of Bajaj Tempo Limited vs. CCE 2000 (36) RLT 947 for our support. We are therefore of the view that the assessee has made out a very good case and we therefore set aside the impugned order, allowing the appeal, ordering consequential relief, if any, according to law.
9. Appeal stands allowed.
(Dictated in Court)