BROTHERS POLY PACK Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) This appeal has been filed by the appellants against the impugned order -in -appeal dated 10 -1 -2002 vide which Modvat credit of Rs. 2,43,563/ - had been disallowed by the Commissioner (Appeals) by affirming the order -in -original of the Assistant Commissioner dated 19 -11 -99.

(2.) The facts are not much in dispute. The appellants are engaged in the manufacture of plastic films and plastic printed pouches, etc. They were availing the facility of Modvat credit under Rule 57 -A, but vide their letter dated 17 -6 -98, they informed their jurisdictional range officer that they would be opting out of the Modvat scheme and shall be availing the benefit of Notification 5/98 dated 2 -6 -98. The Modvat credit involved on the inputs lying in stock and consumed in the finished products in stock, as on 18 -6 -98 was worked out to be Rs. 2,43,563/ - and this amount was debited by the appellants in their PLA and RG 23A Part II register. But later on, the appellants found that their major product was covered by sub -heading 39.20 to which Notification 5/98 did not apply and they again vide letter dated 24 -6 -98 intimated the Range Office that they were opting to work under the Modvat credit scheme under Notification 9/98. They accordingly took back the credit of the amount previously debited of their own. They were accordingly served with the show cause notice for the recovery of that amount. After getting their reply wherein they alleged that they were competent to take Modvat credit of their own when they re -opted for the Modvat scheme. The Assistant Commissioner confirmed the demand. The Commissioner (Appeals) has affirmed that order of the Assistant Commissioner.

(3.) The learned Counsel has contended that on re -option to continue under the modvat scheme, the appellants were entitled to take recredit of the Modvat amount which they initially reversed while, opting out of the scheme and no permission of any authority was required for that purpose. In support of his contention, the Counsel has placed reliance on Uni Deritend Precision Castings v. Commissioner of Central Excise and Customs, Indore - 1999 (112) E.L.T. 593 and Vishakapatnam Steel Plant v. CCES, Vishakapatnam - 2002 (149) E.L.T. 708 (T) = 2002 (52) RLT 818. On the other hand, the learned JDR has reiterated the correctness of the impugned order and relied upon the ratio of the law laid down in Collector of Central Excise, Ahmedabad v. Cadila Laboratories (P) Ltd. - 2002 (142) E.L.T. 279 (SC).