ORDER
Gowri Shankar, Member (Technical)
1. The appeal is against the order of the Commissioner (Appeals) confirming the disallowance of credit taken on the basis of invoices which were issued prior to six months of taking the credit.
2. I have considered the written submission filed by the appellant who is absent as requested in its letter of 06th October 2003, and also heard the departmental representative.
3. The credit was taken on various dates between January and March 1995. The invoices were issued between 5th May and 13th July, 1994. It is not disputed by the appellant that the order of the adjudicating authority relates to credit taken six months after issue of the document. The limit of six months for taking credit was introduced by amendment made to Rule 57G on 28.6.1995. There was therefore no requirement when the credit was taken that it should be taken within six months from the date of issue of document. The Commissioner (Appeals) before whom this point was urged has relied upon the decision of the Tribunal in CCE v. Jayashree Industries 1997 (21) RLT 835. In that decision, the Tribunal has reiterated the view expressed by the bench of this Tribunal in Breaks India Ltd and others v. CCE 1996 (15) RLT 68 that in the absence of any period of limitation contained in Rule 571 prior to 1988, a period of six months (or five years where such as facts of suppression are involved) would be reasonable for issuing the notice for credit should be taken. The bench in Breaks India Ltd followed the judgment of the Supreme Court in Government of India v. Citadal Fine Pharmaceuticals 1989 (42) ELT 515, which held that in the absence of any period of limitation in the statute every authority is to exercise powers within a reasonable period. The Supreme Court was dealing with the argument that Rule 11 of the Central Excise Rules is violative of Article 14 of the Constitution because it did not provide for any period of limitation for the recovery of duty. What the Supreme Court said with regard to law to be exercised by the authorities in terms of legislation would not apply so as to whittle the right of a citizen to exercise his right.
When the invoices were issued no period was prescribed for taking credit The appellant’s contention that the goods were themselves received late because of transport difficulties is not disputed. In the absence of a six months limit, neither the manufacturer of the input nor the appellant would have found any particular reason to ensure that the goods reached the appellant within six months and that it taken the credit by that date. The action of the appellant in taking credit beyond six months on documents which were issued prior to amendment of Rule 57G was therefore not contrary to law.
4. Appeal allowed. Impugned order set aside.
