ORDER
P.G. Chacko, Member (J)
1. The appellants had taken input duty credit of Rs. 21/423/- on 27-2-1996 on the strength of invoice dated 31-1-1995. They had also taken input duty credit of Rs. 1,087.97 on 5-2-1996 on the strength of invoice dated 23-12-1995. The credit of Rs. 21,423/- was disallowed by the lower authorities on the ground that the credit taken was time-barred under Rule 57G of the Central Excise Rules, 1944. As regards the credit of Rs. 1,087.97, the same was disallowed on the ground that the input covered under the relevant invoice was not consigned to the appellants. Appeal No. E/3817/98 is against the denial of these credits.
2. In respect of the countervailing duty (CVD) [Rs. 16,48,659/-] paid on inputs imported and cleared under two Bills of Entry dated 11-2-1994, the appellants had taken Modvat credit on 11-12-1995. This credit was also disallowed by the lower authorities on the ground of time bar under Rule 57G ibid. Hence Appeal No. E/3816/1998.
3. Heard both sides. In respect of the credit of Rs. 21,423/- ld. Counsel for the appellants submitted that this credit had been taken on input received in their factory before a period of limitation was prescribed under Rule 57G for availing input duty credit and therefore the availment of credit on such input was not liable to be held time-barred. In this connection, reliance was placed on the Tribunal’s Larger Bench decision in TELCO v. Commissioner –1996 (87) E.L.T. 157 (T), wherein it had been held that the amendment brought to Rule 57G on 29-6-1995 laying down period of limitation for taking input duty credit had no retrospective effect. As regards the credit of Rs. 1,087.97, it was submitted that, in the relevant invoice dated 23-12-1995, the consignee’s name had been erroneously mentioned as M/s. Lakshmi Machineries Ltd. instead of M/s. Ashok Leyland Ltd. The credit should not have been denied on the ground stated by the lower authorities inasmuch as they had no case that the input was not duty-paid or it had not been used in or in relation to the manufacture of final product. In respect of the credit of CVD taken on the basis of the two Bills of Entry, ld. Counsel relied on the following decisions and argued that the period of six months prescribed under Rule 57G(2) for taking input duty credit was not to be computed from the date of filing of the Bill of Entry :-
(i) Hamco Mining & Smelting Co. Ltd. v. CCE - 2001 (135) E.L.T. 811 (Tri.-Mumbai). (ii) Bullows Paint Equipment Pvt. Ltd. v. CCE - 2001 (138) E.L.T. 1098 2001 (46) RLT 965 (CEGAT - Mum.) (iii) Final Order No. 1022/2002, dated 6-9-2002 in Appeal No. E/1358/1998 [Ashok Leyland Ltd. v. CCE, Chennai]
4. Ld. JDR submitted that the credit of Rs. 21,423/- taken 27-2-1996, after a proviso laying down period of limitation of six months for taking input duty credit was added to Rule 57G(2) by Notification No. 28/95-C.E. (N.T.), dated 29-6-1995, was taken beyond the said period of limitation and the same was rightly disallowed by the adjudicating authority and the first appellate authority. Ld. DR in this connection relied on the Tribunal’s Larger Bench decision in Kusum Ingots & Alloys Ltd. v. Commissioner – 2000 (120) E.L.T. 214 (Tri.-LB) and the Supreme Court’s judgment in Osram Surya (P) Ltd. v. Commissioner – . In respect of the credit of Rs. 1,087.97, it was submitted by the DR that there was no evidence of M/s. Lakshmi Machineries Ltd. not having taken the credit on the strength of the relevant invoice in which their name had been shown as the consignee of the goods. As regards the credits of CVD, the DR reiterated the findings of the Commissioner (Appeals).
5. We have carefully examined the records and considered the submissions. Insofar as the credit of Rs. 21,423/- is concerned, we find that it was taken after 29-6-1995, when the proviso to Rule 57G(2) laying down period of limitation of six months for input duty credit was in force. Admittedly this credit was taken beyond this period of six months. The question now arising for consideration is whether this period of limitation is applicable to input received in the factory prior to 29-6-1995. A similar issue was considered by the Larger Bench in Knsum Ingots & Alloys Ltd. (supra) and it was held thus “after the amendment, credit cannot be taken on duty paying documents which are more than six months old”. This view was upheld by the Apex Court in the case of Osram Surya (P) Ltd. (supra). On the date [27-2-1996] of taking of the above credit, the duty paying document [invoice dated 31-1-1995] was more than six months old and therefore the credit was clearly time -barred. We, therefore, uphold the decision of the lower authorities in respect of the credit of Rs. 21,423/-. As regards the credit of Rs. 1,087.97, this credit was taken within the prescribed time. However, it was taken on the basis of an invoice which mentioned another party [M/s. Lakshmi Machineries Ltd.] as consignee. We note that, in the memorandum of appeal No. E/3817/1998, the appellants undertook to produce before the Tribunal documentary evidence of M/s. Lakshmi Machineries Ltd. not having availed input duty credit on the relevant invoice. This evidence, however, was not adduced by the appellants. In the circumstances, we cannot rule out M/s. Lakshmi Machineries Ltd. [consignee as indicated in the relevant invoice] having availed input duty credit. Hence we have no option but to uphold the decision of the lower authorities in respect of the credit of Rs. 1,087.97.
6. Insofar as the credit of CVD is concerned, this credit was taken on 11-12-1995, after the proviso to Rule 57G(2) laying down period of limitation for input duty credit came into force. It was taken on the strength of triplicate copies of Bills of Entry dated 11-2-1994. As on the date of taking of credit the duty-paying documents [Bills of Entry] were admittedly more than six months old. Hence the Tribunal’s Larger Bench decision in Kusum Ingots & Alloys Ltd. (supra) and the Supreme Court’s judgment in Osram Surya (P) Ltd. (supra) would operate against the appellants. Ld. Counsel relied on certain decisions of the Tribunal to argue that the date of Bill of Entry was not relevant to the computation of period of limitation under the proviso to Rule 57G(2). We note that the Tribunal’s decision in the case of Hamco Mining & Smelting Co. Ltd. (supra) was distinguished and the decision in the case of Bullows Paint Equipment P. Ltd. (supra) was departed from by the Tribunal in the case of Duracell (India) Pvt. Ltd. v. CCE -, wherein it was held that the period of limitation under Rule 57G(2) was applicable to imported inputs also and that credit of CVD taken beyond six months from the date of payment of the duty was not admissible to the assessee. In our view, the decision taken by the Tribunal in the case of Duracell (India) Pvt. Ltd. (supra) by relying on the Tribunal’s Larger Bench decision in Kusum Ingots & Alloys Ltd. (supra) and the Supreme Court’s judgment in Osram Surya (P) Ltd. (supra) requires to be followed in the instant case. Accordingly, we uphold the orders of the lower authorities holding that the credit of CVD taken beyond the period of limitation prescribed under Rule 57G(2) was time-barred.
7. In the result, both the appeals are dismissed.
(Pronounced in open Court on 18-4-2005)