COMMISSIONER OF CENTRAL EXCISE Vs. TATA MOTORS LTD.

JUDGEMENT

(1.) THIS Tax Appeal has been preferred against the judgment and order passed by the Custom, Excise and Service Tax Appellate Tribunal, Kolkata, East Zonal Bench, Kolkata (hereinafter referred as "CESTAT"). By the order dated 19th October, 2011 appeal preferred by the respondent has been allowed and, therefore, respondent has preferred the present appeal. Learned counsel for the appellant has mainly argued that as required under Rule 57G of the Central Excise Rules, 1944 has not been complied with and, therefore, the respondent cannot avail Modvat credit as claimed by the respondent, otherwise there will be the respondent who is claiming Modvat credit and importer will get refund of countervailing duty. To prevent this misuse that in every bill of entry there is a need of declaration by the importer of the goods that the importer is not going to claim refund of countervailing duty. In the eventualities only the respondent can get Modvat credit. In the facts of the present case, the importer of the goods has not given any declaration along with bill of entry that he will not claim the refund of countervailing duty and, therefore, the respondent has wrongly availed Modvat credit. This is the main argument canvassed by the counsel for the appellant. It is also submitted by the counsel for the appellant that this aspect of the matter has not been properly appreciated by the CESTAT and, therefore, the said order dated 19th October, 2011 (signed by both the members on different dates) deserves to be quashed and set aside.

(2.) HAVING heard counsel for both the sides and looking to the facts and circumstances of the case we see no reason to entertain this Tax Appeal mainly for the following facts and reasons:

(3.) LOOKING to this circular, it appears that the department is in search of declaration to be given by the importer, but, the fact remains that the importer has not claimed even the refund of countervailing duty. Thus, in the facts of the present case out of two persons namely importer and the manufacturer, only manufacturer is claiming Modvat credit. Hence, we see no reason to interfere this Tax Appeal preferred by this appellant. This aspect of the matter has been properly appreciated by the CESTAT, East Zonal Bench, Kolkata. Hence, this Tax appeal is, hereby, dismissed.