COMMISSIONER OF CENTRAL EXCISE Vs. CENTURY LAMINATING CO

JUDGEMENT

(1.) By means of the present writ petition, petitioner is challenging the impugned order dated 28-12-2001 passed by respondent No. 2, Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (in short "CEGAT")

(2.) Brief facts of the case are that respondent No. 1, M/s. Century Laminating Company, Hapur, Ghaziabad was manufacturer of decorative laminated rigid plastic sheets, industrial laminated plastic sheets, as final product and melamine formal dehyde resins, phenol formal dehyde resins for captive consumption. In their classification list submitted for the period 13-7-1981 to 28-2-1982, respondent No. 1 claimed that the above two resins were non-excisable as they were intermediate products. Assistant Commissioner, however, held that resins were liable to duty under items 15-A of Central Excise Tariff and demanded duty thereon. Said order was challenged in appeal and thereafter, matter went to Tribunal. Meanwhile Rules 9 and 49 of Central Excise Rules (hereinafter referred to as "Rule") were amended retrospectively in 1982 bringing the concept of deemed removal in respect of captive consumption. Respondent No. 1 thus became liable to pay duty on resins captively consumed. Before Tribunal, respondent No. 1 pleaded that they should be granted facility of proforma credit of input duty under Rule 56A of Rules or they should be allowed set off of import duty under Notification No. 201/79, Tribunal decided the appeal with the observation that the appellant had not paid duty on resin because of the judicial position, which was supportive of their contention that these goods were not excisable. Tribunal noted that under Rule 56A(2B) the Commissioner has powers to condone delay on the part of manufacturer in filing application for availing proforma credit under certain circumstances and so also the Commissioner had discretion under set off Notification No. 201/79 to condone non-compliance with procedural formalities. Tribunal remanded back the matter with the direction to the appellants to approach the Commissioner for exercising his powers under Rule 56A and Notification No. 201/79 accordingly.

(3.) Respondent No. 1 accordingly, applied on 4-12-1987 to the Commissioner for being granted proforma credit facility or set off of input duty under Notification No. 201/79 and sought condonation of delay in making such an application. Commissioner rejected the application and refused to condone the delay. Respondent No. 1 further filed appeal before Tribunal. Tribunal vide order dated 2-4-1996 following the decision of Hon'ble Supreme Court in the case of Formica India Division v. Collector of Central Excise, reported in 1995 (77) E.L.T. 511, held as follows : "Applying the ratio of the decision cited supra, the impugned order is set aside with the that the Commissioner may permit proforma credit facility to the appellants, if otherwise in order and as per law on being satisfied regarding the use of the intermediate goods in the final product for which reasonable opportunity may also be given to the appellants."