PAHARPUR PLASTICS LTD Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THE above appeals arise out of a common Order -in -Appeal and are hence heard together and disposed of by this common order. In Appeal No. E/2687/99, the issue relates to demand of duty of Rs. 4,65,234.05 confirmed on a quantity of 45,000 kgs. Of polypropylene granules cleared by the appellants to M/s. EMR polytex without debiting duty either in PLA or RG 23A Part II. The appellants who are represented by Shri Rajesh Chhiber, learned Advocate submits that in addition to obtaining granules from the domestic market, they were also importing granules duty free under Advance Licensing Scheme and that they had not availed any Modvat credit on the above -mentioned quantity and hence were not required to debit any duty thereon. However, as seen from the Order -in Original No. 66/96 dated 29.3.96 of the Assistant Collector, the appellants had a stock of 1,01,423 kgs. of Shell K -6100 PP granules as on 1.4.93, they received 36,80,289 kgs. of pp granules during the period 1.4.93 to 31.3.94 whereas they had issued 30,79,707 kgs. during the said period, resulting in a closing balance of 7,02,005 kgs. as on 31.3.94; there were no receipts in the month of April 94; 83075 kgs. were issued in April 94, leaving a closing balance of 6,18,930 kgs. They received 7,13,514 kgs. of PP granules during the period from 1.1.93 to 29.10.93. Vide letter dated 17.10.94 addressed to the jurisdictional Superintendent of Central Excise, the appellants informed the Department that the said quantity was imported duty free vide Bill of Entry dated 20.8.93 which was for a quantity of 1,13,752 kgs. Thus the contention of the appellants that 45,000 kgs. cleared on 30.4.94 (the quantity on which duty demand has been confirmed) were out of a quantity imported duty free on 20.8.93 is not acceptable for the reason that the quantity of 7,13,514 kgs. lying in stock as on 31.3.94 can be said to be out of receipts on or after 29.10.93, taking into account the issues on "first in first out" basis. The RT 12 returns submitted by the appellants also shows that they were entering both duty paid as well as duty free raw materials in RG 23A Part I and thus correlation cannot be established. I, therefore, confirm the demand of Rs. 4,65,234.05 and reject Appeal No. E/2687/99 -NB.

(2.) APPEAL No. E/2688/99, relates to demand of Rs. 57,990.41. Credit of Rs. 12,528.41 has been disallowed on the ground that the declaration was filed after the prescribed period of 3 months. The appellants submit that the period involved is June 94 i.e. immediately after the introduction of scheme of credit on capital goods under Rule 57Q and the Department does not dispute the genuineness of the duty paying documents in respect of the goods in the factory and use thereof by the appellants in their factory, and they, therefore, urge that the above -mentioned credit amount should be held to be available to them. My attention has been drawn to the decision of the Tribunal in the case of Collector of Central Excise v. Multi Metals Ltd. reported in 1999 (31) RLT 683. In this case, the assessees/respondents have been held to be eligible to credit even though there was a delay of more than 3 months after the receipt of the capital goods in filing the declaration under Rule 57T of the Central Excise Rules. This decision in turn relies upon the earlier decision in the case of M/s. Greysham and Co. v. Collector of Central Excise, New Delhi reported in 1997 (18) RLT 499. Learned DR has not brought to my notice any decision to the contrary. Hence following the ratio of the orders cited supra which are directly on the issue in dispute, I set aside the denial of credit of Rs. 12,528.41.

(3.) CREDIT of Rs. 4576 has been disallowed on the ground that the appellants had not filed any declaration for Hytherm 500 and HDPE Retreader, the goods on which credit was availed. It is their submission that Hytherm 500 is a machine oil and machine oil had been declared by them, and that HDPE Retreader is used as thinner and declared as thinner in the 57Q declaration and, therefore, it cannot be said that they did not file any declaration before taking credit. The above submissions have not been rebutted by the Revenue. Hence accept the appellants' contention that the declaration for machine oil and thinner covers the two items in dispute, I set aside the denial of the credit of Rs. 4576.