INDIA GYPSUM LTD Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) BEING aggrieved by the orders in Appeal No. E/1979 and 2004/91 -NRB passed by the Collector, Central Excise (Appeals) M/s. India Gypsum Ltd. the appellant in this case have filed this appeal. As the two appeals arise out of the same order they are being dealt with by this common order. The Collector (Appeals) in his order had held : -

(2.) BRIEFLY stated the facts of the case are that M/s. India Gypsum Ltd. had filed refund claims for Rs. 14,720.16 and Rs. 5,314.72 on the ground that the appellant had debited Modvat credit in respect of inputs used in the manufacture of Gypsum Board which was destroyed as per the orders of the Asstt. Collector, Central Excise under Rule 49 of the Central Excise Rules, 1944. The Department was of the view that as the item destroyed was a final product and therefore the concession under Rule 57D was not applicable to them, whereas the appellant contended that in terms of Rule 57D of the Central Excise Rules, 1944, credit of input duty could not be denied to the appellant as the material destroyed was waste, rejects and defective boards and were fully covered under the provision of Rule 57D of the Central Excise Rules.

(3.) MS . Archana Wadhwa, the ld. Advocate appearing for the appellant challenged the findings of the Collector, Central Excise (Appeals) on the ground that it was not open to Collector (Appeals) to take up a point which was dropped by the Asstt. Collector, inasmuch as the Collector (Appeals) had held that, the Collector had permitted destruction of the material under certain conditions and that unless those conditions were complied with by the appellant, the order of destruction could not be implemented and, therefore the ld. Counsel submitted that the ld. Collector (Appeals) had passed the order, was not a speaking order nor did it deal with issues raised. In support of this contention the ld. Counsel relied on the decision of the Tribunal in the case of Foam Rubber Factory v. CCE, reported in 1989 (43) E.L.T. 489 and in the case of Brooke Bond India Ltd. v. CCE, reported in 1983 (13) E.L.T. 1169. The ld. Collector (Appeals) had erred in holding that having not appealed against the order, the appellants have deprived themselves of their right to question the same decision before the lower authority by claiming the refund and that if the Asstt. Collector had allowed the refund claim he would have negatived the conditions laid down by the Collector. On this ground alone the ld. Collector (Appeals) rejected the appeal of the appellant. The ld. Counsel submitted that the ld. Collector (Appeals) findings are not maintainable in law in view of the two decisions cited and relied upon by the appellant.