ORDER
Jyoti Balasundaram, Member (J)
1. The brief facts of the case are that the appellants are engaged in the manufacture of Super Enamel Copper Wires and Super Enamel Aluminium Wires both falling under Sub-heading 8545.00 of the Schedule to the CETA, 1985 and are availing the facility under the Modvat scheme. While checking the RT 12 returns for January to March, 1994, it was observed that they had cleared transformer parts falling under Sub-heading 8504.00 involving duty of Rs. 1,60,275/- paid by way of debit entry in RG 23A Part II maintained; since the appellants did not declare transformer parts as one of their final products, the Department was of the view that credit had been wrongly availed and hence a show cause notice proposing recovery of the above mentioned amount was issued. Both the authorities below have rejected the claims of the assessees and the demand has been confirmed thus giving rise to the present appeal.
2. Shri K.K. Anand, learned Counsel submits that the limited prayer in this case is that the appellants may be permitted to utilise the credit which has already been restored by them in terms of the stay order, towards payment of duty for their declared final products, Super Enamel Copper Wire/Super Enamel Aluminium Wire. In this connection, he relies upon the decision of the Tribunal in the case of Friends Wire Industries v. Collector of Central Excise, Chandigarh reported in 1995 (80) E.L.T. 219 wherein the Tribunal has held that “once credit wrongly availed on final products which has not been declared is restored to the RG 23A account, its utilisation for payment of duty for an eligible final product cannot be objected to as there is no one to one co-relation between the input and the final product, the only situation where credit cannot be allowed when the final product is wholly exempt from duty or chargeable to nil rate of duty under Rule 57C”. In the present case, the exception does not apply and therefore, there is no reason why the prayer of the appellants cannot be allowed.
3. Learned DR, Shri Nayyar objects to the grant of the appellants’ prayer on the ground that it was only w.e.f. 16-3-1995 by way of insertion of a proviso to Rule 57F of the Central Excise Rules, that utilisation of credit of specified duty allowed in respect of any inputs towards payment of excise duty on any other final product, whether or not such inputs had been actually used in the manufacture of such other final product, if the said inputs had been received and used in the factory of production on or after 16-3-1995, was permissible. His submission is that prior to insertion of this proviso by Notification 11/95, there was no provision in the Rules for utilising credit of duty paid on inputs used in the manufacture of one final product towards payment of duty on any other final product. However, this submission of the learned DR cannot be accepted as it is clear that there is no one-to-one co-relation between the actual inputs and final products and in a case such as this where the inputs are common both for the declared final product as well as for non-declared final product, such utilisation of credit of duty is legally permissible towards payment of duty on the other (declared) final product. Therefore, I accept the prayer of the appellant and direct that since credit has already been restored by them the credit may be utilised by them towards payment of duty on their declared final product viz. Super Enamel Copper Wire and Super Enamel Aluminium Wire. The appeal is disposed of in the above terms.