FLEX INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appeal is against Order -in -Appeal dated 22 -1 -1999 passed by the Commissioner (Appeals), Ghaziabad affirming the Order -in -Original passed by the adjudicating authority on the question of Modvatability of HSD Oil. The adjudicating authority had disallowed Modvat credit on HSD Oil as input to the tune of Rs. 3,58,448/ - holding that HSD Oil was non -Modvatable under Rule 57A of the Central Excise Rules, 1944. The Commissioner (Appeals) in the aforesaid order dated 22 -1 -1999 affirmed this finding and rejected the appellant's plea that Modvat credit on HSD Oil was admissible under Rule STB by virtue of the non obstante clause of this rule. Appellant is before the Tribunal on the same ground as raised before the lower appellate authority.

(2.) I have heard Shri A.K. Jain, Authorised Representative of the appellant and Shri Y.R. Kilania, learned }DR for the respondent in the said application.

(3.) THE learned Representative of the appellant submits that the issue involved in the appeal is covered by certain previous decisions of this Tribunal. He cites two decisions viz. decision in the case of Jindal Polymers v. C.C.E., Meerut 1999 (31) RLT 214 (CEGAT) and decision in the case of Easter Industries v. C.C.E., Meerut 1999 (31) RLT 458 (CEGAT). In the former decision, it is held that non obstante clause in Rule STB of the Central Excise Rules makes the said rule override the provisions of Rule 57A of the Rules ibid. I observe that the issue involved in the present appeal revolves around this ruling. In the latter decision reported in 1999 (31) RLT 458 (CEGAT), HSD Oil is seen to have been held eligible for Modvat credit under Rule 57A of the Rules ibid. The above decisions are certainly referrable to the periods in dispute involved in the respective cases. Therefore, I am not inclined to go into the applicability of these decisions to the facts of the present case. The period in question in the present case is June to November, 1997. I observe that there are certain Notifications, Trade Notices, etc. affecting the tenor of the provisions of Rule 57A and Rule 57B as applicable to the period in dispute. For this reason, I hold, the appellant has an arguable case.