JUDGMENT
Jeet Ram Kait
1. This appeal is directed against the order in Appeal No. 86/97 (M) dated 2.6.97 passed by the Commissioner (Appeals) Chennai. The Commissioner (Appeals) has decided the issued on the direction of CEGAT vide final order No. 321/1195 dated 13.5.95 by which the Tribunal had directed the Commissioner (Appeals) to dispose of the appeal taking cognizance of the order of the Assistant Commissioner. The Tribunal had held that the order of the learned lower appellate authority was nt maintainable in law and set aside the order and remanded the matter to the lower appellate authority to pass an order afresh after taking cognizance of the order of the Assistant Collector as the appellants had filed application on 7.11.87 before the competent statutory authority for relief in terms of Rule 57H and the order which emerged in the proceedings under Rule 57H was legally appealable order and it was against that order the appellants approached the Collector (Appeals) and he was required to dispose of the appeal taking cognizance of the order of the Assistant Collector. The appellant had filed appeal against the order of the original authority bearing No. 44/88 dated 2.9.1988 by which he had held that deemed credit of Rs. 2,83,368.70 expunged by the appellants was correct as it was demanded for violation of the provisions of Rule 57H(2). The Assistant Collector had vacated the protest lodged by letter dated 7.11.87.
2. The appellants, as can be seen from the order of the Commissioner (Appeals), the appellants have been vacillating between claiming deemed credit which they claimed was available to them vide Govt. of India order No. 342/1/88 TRU dated 28.5.88 and under Rule 57H(2) whether the credit could not be available to them if it was paid before 1.2.86. The Commissioner (Appeals) has given a detailed finding about the whole issue as contained in para 2 to 6 of his order.
3. Shri S. Ignatious, learned Counsel of the appellants submitted that though the appellants have been claiming Modvat Credit under Rule 57H(2) and also under the above order. but they are entitled to Modvat Credit under Rule 57H(1A) of the CE Rules. 1944 since they are claiming Modvat Credit on the inputs which are lying in stock and not on the inputs which have been used in the manufacture of final product. This was never the case of the appellants either before the Assistant Collector or before the Commissioner (Appeals). The plea that they are entitled to Modvat Credit under Rule 57H(1A) has been taken for the first time during the course of hearing before the Tribunal today i.e. on 22.10.2001. On a query form the Bench whether this stock on which Modvat Credit is being claimed under Rule 57H(1A) is available of the Assistant Commissioner to verify, he submitted in consultation with the representative of the Company that the inputs in stock is not available now. Therefore, the Bench observed that at this belated stage, it would be a futile exercise to consider their claim under Rule 57H(1A). He also invited my attention to the judgement of the Tribunal in the case of CCE v. Hindustan Development Corporation reported in 1990 (47) ELT 376 and also in the case of KG Khosla Compressors Ltd. v. CCE reported in 1997 (95) ELT 587 (Tribunal).
4. The learned DR Shri A.Jayachandran reiterated the findings as contained in the impugned order and objected to consider the plea of the appellants afresh after a lapse of 16 years under Rule 57H(1A) when the goods are no more available for verification by the Assistant Commissioner. He emphasised that Modvat Credit under Rule 57H(1A) can be granted only be the Assistant Commissioner and that too after due verification of the input with the corresponding duty paying documents. In view of the fact that the appellants do not have the goods now, their plea for giving them the benefit of Rule 57H(1A) cannot be considered.
5. I have gone through the records and considered the submissions made by both the sides and have also perused the order of the original authority and the impugned order. I find that the case has been examined through out under Rule 57H(2) only and they were not satisfying the conditions as contained in the Notification and Rule 57H(2) as it then existed. I find that the appellants are not entitled to the deemed credit of the reasons recorded by the original authority nad the lower appellant authority. The learned Counsel has drawn my attention to the judgments of the Tribunal in the case of CCE v. Hindustan Development Corporation (supra) and in the case of KG Khosla Compressors Ltd (supra). I find that in both these judgments, the Assistant Commissioner had misdirected himself and not applied the law correctly whereas in this case the appellants had never made plea for the benefit under Rule 57H(1A) and they are not entitled for Modvat Credit under Rule 57H(1B). The appellants have not satisfied the various conditions as set out under those rules. Therefore, both these judgements are not squarely applicable to the facts of the present case. In views of this and in view of the detailed order passed by the authorities below, I am of the considered opinion that the appellants are not entitled to the benefit of Modvat Credit in the facts and circumstances of this case. Therefore, I confirm the impugned order and reject the appeal. Ordered accordingly.
(Dictated and pronounced in open Court)