1. The issue involved in this Appeal is about admissibility of MODVAT credit on HSD. oil.
2. When the matter was called, no one was present on behalf of the appellants M/s. Shyam Filaments Ltd. They have requested under their letter dated 14.10.03 for adjourning the matter on the ground that the same issue is pending before the Hon'ble Supreme Court in some other matters. The mere fact that the same issue is pending before the Supreme Court in Appeal filed by some other Appellants is not a sufficient cause to adjourn the hearing o if the Appeal filed by the present Appellants. We therefore, heard Shri Kumar Santosh, learned Senior Department Representative, and perused the record. It has been submitted by the appellants in their memorandum of Appeal that they had taken the credit of duty paid on HSD Oil under Rule 57 B of the Central Excise Rules, 1944; that Section 112 of the Finance Act, 2000 provided that credit is not admissible in respect of HSD Oil with retrospective effect; that the validity of the provisions of disallowing the MODVAT credit with retrospective effect was challenged before the Rajasthan High Court in a writ petition filed by their sister concern M/s. Shree Rajasthan Syntex Ltd. that further, Special leave petition filed by Shri Cement Ltd. has been admitted by the Supreme Court on 20th January, 2003. It is further, mentioned that in view of the matters being sub judice, the lower authorities should have not decided the matter against them and it should have been kept in abeyance awaiting the decision of the Supreme Court and the High Court. It is, further mentioned in the memorandum of Appeal that in order to invoke Section 112 (2)(b) of the Finance Act for levy of interest, it is absolutely necessary that the Adjudication orders in pursuance of the show cause notice should have been passed during the period 16.3.95 to 12.5.2000; that Section 112 only validates demand which has already been adjudicated by the show cause notice; that the said provision does not automatically confirm the demands which are not subject matter of the show cause notice nor does Section 112 convert such show cause notice into demand notice.
3. We have considered the submissions. It is not disputed that 8 show cause notices were issued to the Appellants during the period from 1998-2000 for disallowing the MODVAT credit in respect of HSD oils. The Larger Bench of the Tribunal in the case of Chemo Philp Tissues v. CCE Meerut, [2000 119 ELT 715 (T-LB)] has held that provision of Section 112 of the Finance Act, 2000 has come into force with effect from 12.5.2000 in view of which high speed diesel oil is not eligible for benefit of credit during the period 16.3.95 to 12.5.2000. Similar view have been held by the Tribunal in the case of CCE v. Mysore Cement Ltd. 2002 (147) ELT 3522 (Tri). Section 112 of the Finance Act, 2000 clearly provides that notwithstanding anything contained in any judgment, decree or Order of Court, tribunal or other Authority, no credit of any duty paid on high speed diesel oil at any time during the period from 16.3.95 and up to the day the Finance Act, 2000 receives the assent of the President shall be deemed to be admissible under Rule 57 A or 57 B of 57 D or any other Rule of the Central Excise Rules, 1944. Thus in view of the provisions of Section 112 of the Finance Act, 2000, no MODVAT credit of the duty paid on HSD oil is available to the Appellants. Further, sub-section (2) provides for payment of interest if the amount is not paid within 30 days from the date on which the Finance Act, 2000 receives the assent of the President. In view of these specific provisions, there is no merit in the Appeal which is rejected. There is no force in the contention that the matters are pending in Rajasthan High Court Supreme Court as the appellants themselves have not challenged the validity of the said section of the Finance Act, 2000 in any High Court of Supreme Court not there any Appeal filed by them is pending in Supreme Court. They have also not brought on record any Order passed by any High Court of Supreme Court staying the operation of the said Section of the Finance Act, 2000. The Appeal is thus accordingly rejected.