(Per :
HONOURABLE MS. JUSTICE HARSHA DEVANI)
1. The appellant, Commissioner of Central Excise, Ahmedabad has challenged the judgment and order dated 9th October, 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal').
2. While admitting the appeal, this court had, by an order dated 29th March, 2007, formulated the following substantial question of law:-
"(A) Whether in the facts and circumstances of the case, the Tribunal was right in holding that the assessee was entitled to avail Modvat credit on inputs under cover of invoice issued under Rule 100E of CER, 1944 failing to appreciate that Modvat credit is allowed to the extent of additional duty of Customs (CVD) only as restricted by Notification No.5/94-CE(NT)?"
3. The respondent herein was engaged in the manufacture of Castings and other articles in respect of which they were availing of the benefit of modvat facility. The respondent had taken credit of inputs received from 100% EOU in terms of the Notification No.5/94-CE(N.T.) dated 1st March, 1994. The credit of specified duty was restricted to 95% of the additional duty levied. According to the appellant, the assessee had wrongly taken modvat credit in excess of what was envisaged. A show-cause notice came to be issued proposing recoveries of such excess which came to be dropped by the adjudicating authority. Revenue carried the matter in appeal before the Commissioner (Appeals) who dismissed the appeal. Revenue carried the matter in further appeal before the Tribunal but did not succeed.
4. At the outset, Mr. Vijay Nair, learned advocate for the respondent has submitted that the controversy involved in the present case stands concluded by a decision of this court in the case of Commissioner of Central Excise vs. H.K. Moulders, 2011 (268) E.L.T. 43 (Guj.) wherein the court in a similar set of facts has answered the question in favour of the assessee and against the revenue.
5. Mr.
Y.N. Ravani, learned senior standing counsel for the appellant is not in a position to dispute the aforesaid position. He, however, has submitted that in the case of Vikram Ispat vs. Commissioner of Central Excise, Mumbai-III, 2000 (120) E.L.T. 800 wherein a similar controversy is involved a Larger Bench of the Tribunal has rendered a decision in favour of the assessee, and the matter is pending before the Supreme Court.
6. Considering the fact that undisputedly the controversy involved in the present case stand concluded by the decision of this court in Commissioner of Central Excise vs. H.K. Moulders (supra), for the reasons stated therein, the question is answered in the affirmative i.e. in favour of the assessee and against the revenue. The appeal is accordingly dismissed.
( Akil Kureshi, J. ) ( Harsha Devani, J. ) hki Top