imp Power Ltd. Vs. Commissioner of Central Excise

imp Power Ltd. vs Commissioner of Central Excise

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Sep 23, 2003

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Citation: sooperkanoon.com/32382
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: S T Gowri
Decided On: Sep 23, 2003
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

imp Power Ltd.

Respondent

Commissioner of Central Excise

Excerpt

1. the applicant availed credit in april 2001 under rule 57ae on the basis of supplementary invoices issued by manufacturer of the inputs in february 2001. the manufacturer had not paid duty on the goods earlier on his view that the goods were exempted in terms of notification 49/94. subsequently the manufacturer, it appears, voluntarily paid the duty on his understanding that the exemption contained in the notification would not apply. the department objected to applicant taking the credit on the ground that there was no provision in law for this purpose; sub-rule (1) of rule 57ae, as it then stood, provided for taking credit on the basis of supplementary invoices issued only when the provisional assessment was finalised or on account of additional amounts payable by the manufacturer on account of escalation in the prices. the deputy commissioner has confirmed the demand. on appeal, the commissioner (appeals) has confirmed the order.2. the counsel for the applicant contends that by amendment made on 1.3.2001 sub-rule (1) of rule 57ae, it provided for issue of supplementary invoices whenever any duty is paid extra by the manufacturer oh any account. therefore, taking of credit was proper.3. the departmental representative points out that when the invoices were issued in february 2001, this amendment had not come into effect and these supplementary invoices were therefore not valid when they were issued. they cannot have retrospective effect.4. on the face of it the issue is debatable and i do not find that the applicant had a clear cut case. as the matter stands now, on a prima facie view, in the absence of any proper provision in law. when the invoices were issued, they were not valid for taking credit; the significance of subsequent amendment will have to be examined. on this being put to the counsel for the applicant, he agrees to keep unutilised in the rg23a part ii, a sum of rs. 50,000/- pending disposal of the appeal. this appears reasonable. i, therefore,.....

Full Judgment

1. The applicant availed credit in April 2001 under Rule 57AE on the basis of supplementary invoices issued by manufacturer of the inputs in February 2001. The manufacturer had not paid duty on the goods earlier on his view that the goods were exempted in terms of notification 49/94. Subsequently the manufacturer, it appears, voluntarily paid the duty on his understanding that the exemption contained in the notification would not apply. The department objected to applicant taking the credit on the ground that there was no provision in law for this purpose; Sub-rule (1) of Rule 57AE, as it then stood, provided for taking credit on the basis of supplementary invoices issued only when the provisional assessment was finalised or on account of additional amounts payable by the manufacturer on account of escalation in the prices. The Deputy Commissioner has confirmed the demand. On appeal, the Commissioner (Appeals) has confirmed the order.

2. The counsel for the applicant contends that by amendment made on 1.3.2001 Sub-rule (1) of Rule 57AE, it provided for issue of supplementary invoices whenever any duty is paid extra by the manufacturer oh any account. Therefore, taking of credit was proper.

3. The departmental representative points out that when the invoices were issued in February 2001, this amendment had not come into effect and these supplementary invoices were therefore not valid when they were issued. They cannot have retrospective effect.

4. On the face of it the issue is debatable and I do not find that the applicant had a clear cut case. As the matter stands now, on a prima facie view, in the absence of any proper provision in law. When the invoices were issued, they were not valid for taking credit; the significance of subsequent amendment will have to be examined. On this being put to the counsel for the applicant, he agrees to keep unutilised in the RG23A Part II, a sum of Rs. 50,000/- pending disposal of the appeal. This appears reasonable. I, therefore, waive deposit of the credit demanded and the penalty imposed of Rs. 10,000/- subject to compliance with this condition being shown on 24.11.2003.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties imp Power Ltd. vs Commissioner of Central Excise Same Subject Excise Same Judge S T Gowri