RAJASTHAN SYNTHETIC INDUSTRIES Vs. CCE

JUDGEMENT

(1.) The issue involved in these appeals, filed by M/s. Rajasthan Synthetic Industries Ltd., is whether MODVAT Credit is available to them on the strength of gate passes endorsed thrice.

(2.) Shri P. Mullick, learned Advocate, submitted that the Deputy Commissioner, under the Order -in -Original No. 232 -233/2000 dated 14.7.99, has allowed them MODVAT Credit of the duty paid on the inputs on the basis of gate passes endorsed thrice following the decision of the Tribunal in the case of S.B.B. Organics Pvt. Ltd. vs CCE, and C, 1990 (45) E.L.T. 701 (T); that, however, on appeals preferred by the Revenue, the Commissioner (Appeals) has set aside the Order -in -Original on the ground that the Board in circular No. 22/90 -CX.8 dated 9.4.90 has clarified that the Tribnunal's decision in S.B.S. Organics Pvt. case is in variance with the Board's instructions dated 17.4.89, which may be considered as an exception and would be made applicable to the individual case, if any, and it could not be applicable to any other case for grant of MODVAT Credit on the gate passes which have been endorsed more than two times; that the Commissioner (Appeals) has also observed, in the impugned order, that the Board's circulars are binding on revenue even it place the different interpretation than the interpretation put by the Hon'ble Supreme Court as held in the case of CCE, Vadodara vs Dhiren Chemicals Industries, 2002 (139) ELT 3 (SC). The learned Advocate, further, submitted that the Commissioner (Appeals) reliance on Board's circular is misplaced in as much as the Board does not have any authority/jurisdiction to undo a decision of the Tribunal by issuing classificatory instructions without filing any appeal against any of the Tribunal's decisions. He relied upon the decision of the Delhi High Court in the case of M/s. Kisan Chemicals vs Union of india, 1996 (88) ELT 648 (Del) wherein the Delhi High Court has held that the Board cannot merely issue a circular to render the decision of the Tribunal as irrelevant and nugatory. Learned Advocate finally mentioned that the appellate Tribunal in number of cases has held that the MODVAT Credit cannot be denied on the basis of gate passes endorsed thrice. He relied upon the decision of the Tribunal in the case of CCE, Calcutta -II vs M/s. Modern Malleables Ltd., 1997 (92) ELT 284 (T) and CCE, Chandigarh vs Bilt rite Packaging P. Ltd., 2002 (50) RLT 933 (Cegat -Del.). Reliance has also been placed on the decision of the Tribunal in the case of CCE, Jaipur vs Sunrise Technofab Pvt. Ltd., 1997 (90) ELT 468 (T) wherein the Tribunal rejected the Reference application for making reference to the High Court in case where MODVAT Credit was allowed on the strength of gate passes endorsed thrice holding that no law point is involved.

(3.) Countering the arguments Shri Virag Gupta, learned DR., reiterated the findings contained in the impugned order.