JUDGMENT
Archana Wadhwa
1. After hearing both sides duly represented by Shri S.K.Bagaria, ld.Advocate and Shri V.K.Chaturvedi, ld.SDR, we find that the present appeal has been filed against the order of the Deputy Commissioner quantifying amount of modvat credit required to be reversed by the appellants. The contention of Shri Bagaria is that a dispute as regards and procedure to be followed for reversal of modvat credit was going on between the appellants and its jurisdictional Central Excise authorities. The matter was ultimately remanded by the Tribunal to the Commissioner for fresh decision after following the procedure prescribed in the Board’s Circular No. 232/66/96-CX dated 25.7.96. The Commissioner in his denovo order dated 2.6.99 accepted that the Board’s instructions have to be followed and directed the Assistant Commissioner to quantify the demand, which quantification order will form a part of the order of the Commissioner. As a result of the said order of the Commissioner, the matter was taken up by the Deputy Commissioner who vide his communication dated 12th January, 2001 quantified the amount of Rs. 24,82,488.00 to be reversed by the appellants out of the credit avoided against the common inputs consumes in the manufacture and clearances of exempted/exported footwear. Ld. Advocate submits that they have no grievance with the said quantification of the amount which has ben done by the Deputy Commissioner in accordance with the Tribunal’s direction and Board’s Circular. However, their grievance is that during the relevant period. They were not allowed to utilise the credit for payment of duty towards their excisable product and such un-utilised credit accumulated to the tune of Rs. 98,95,442.22 and after deducting the reversable amount of Rs. 24,82,488/-, the balance amount comes to Rs. 74,12,954.22. Inasmuch as the appellants have stopped working under the could not utilise on account of restrain put by the Revenue, should be paid to them in cash.
2. At the out set, Shri V.K.Chaturvedi, ld.SDR appearing for the Revenue raised an objection that the appeal has been filed against the order of the Deputy Commissioner of Central Excise, Patna and as such the Tribunal does not have any jurisdiction to deal with the same. The appeal against the above order have been filed by the appellants before the Commissioner (Appeals).
3. However, we find that the said communication of Deputy Commissioner is not deciding any legal issue but is only quantifying the demand in terms of order passed by the Commissioner of Central Excise, Patna. In fact in the operative portion of the order passed by the Commissioner, Patna, he has observed that the quantification order by the Assistant Commissioner will form part of the said order passed by him on 2.6.99. As such we are of the view that the Deputy Commissioner’s order which is only quantifying demand of duty, is in fact a part of the order passed by the Commissioner vide which he had directed him to do so. Inasmuch as the appeal has been filed within a period of three months from the date of communication of the quantification by the Deputy Commissioner, the same has to be treated as having been filed within limitation, in view of the law paid down by West zonal Bench in the case of Swan Mills Ltd. reported in 2000 (125) ELT 669 (Tribunal), It was held by the Tribunal in the said case that date of communication of an appealable order is the date when communication quantifying the demand of duty is received by the assessee. Accordingly, the objection of the ld.SDR is over-ruled.
4. It is however seen that throughout the proceeding, the issue before the authorities concerned including Tribunal was as regards the correct method to be adopted for reversal of the amount of credit initially availed in respect of inputs utilised in the manufacture of excisable an exempted footwear, whereas the issue in the present appeal filed by the appellants relates to the refund of balance amount of credit accumulated in their records, which according to them, they could not utilise because of the restraint imposed by the Revenue. Inasmuch as, the said issue was not the subject matter of the proceeding which have ultimately culminated into the orders passed by the authorities below confirming reversal of particular amount of credit, with which the appellants are not aggrieved with, we do not find it feasible to entertain the appellants’ appeal on this count. If the appellants lay their claim for refund for un-utilised accumulated credit, they can approach their jurisdictional Central Excise authorities for the said purposes. Accordingly, we do not find any merits in the appeal and reject the same.
