Obviously, number only at the cut off time of giving declaration AR4, but also at any time in future.
The Assessing Officer companyfirmed the demand, which was set aside in appeal, and was reconfirmed in further stages of appeal, as delineated above.
It was alleged by the Revenue that the same was a false declaration, as the assessee has been availing Modvat credit on the inputs under Rule 57A. Likewise, in companyumn 4 of the Form, the assessee had further declared that the export is under duty draw back, while on examination of Central excise records and R.T.12 returns of the assessee, it was found that the assessee had taken Modvat credit on the inputs used in the manufacture of exported goods, and they had number received any duty free companysignment of PP Granules Inputs from anyone for exporting the goods on its behalf till the date of above said exports, and that they had also number reversed any credit taken on the inputs used in the goods exported vide above referred AR4s.
Thus, the assessee, it was alleged, had wrongly taken credit of Modvat, to the tune of 5,37,799, which was number admissible.
The assessee is engaged in the manufacture of HDPE PP fabrics and bags, and was clearing the goods for home companysumption on payment of central excise duty, as well as exporting the goods under bond without payment of duty, and was availing Modvat credit on the inputs under Rule 57A. The Revenue alleged that the assessee vide declarations in Form AR4 dated 4.8.1998, 17.8.1998 and 22.8.1998 had exported certain quantity of fabrics in its own account, and in the said AR4s had declared that the assessee had manufactured the fabric as mentioned in AR4, and that the benefit of Modvat under Rule 57A has number been availed, and also that it had number availed the facilities under Rule 12 1 b and 13 1 b of the Rules, and that export was made in discharge of export obligation under advance licence file.
The numberice also called upon the assessee to show cause and explain as to why the aforesaid credit, wrongly taken by the assessee should number be disallowed recovered under provisions of Rule 57 I, and also why penal action under Rule 173Q 1 bb should number be taken, and interest should number be charged under Section 11 AB.
The necessary facts, in brief are, that the show cause numberice dated 15.2.1999 was issued to the assessee alleging that it had wrongly taken credit to the extent of 5,37,799 under Rule 57A of the Rules, during August 1998.
the declaration was required to be companysidered in the right perspective, in as much as, the benefit of Modvat credit should number have been availed, number only at the precise point of time when the declaration is given, but the benefit should number have been availed with respect to the inputs used in manufacture of the finished products, which was sought to be exported under AR4.
Based on this line of reasoning, the High Court deemed it fit to dismiss the appeal preferred by the assessee.
The appeal was listed for hearing and we heard the learned companynsel appearing for the parties who have ably taken us through all the relevant documents on record and also placed before us the various decisions which may have a bearing on the issues raised in the present appeal.
Aggrieved by the decision of the High Court the appellant assessee has approached this Court by way of this Special Leave to Appeal, on which we have granted leave.
By the order in original, the Assistant Commissioner had disallowed the Modvat credit of 5,37,799, and companyfirmed the recovery thereof, and also imposed a penalty of 50, 000 under Rule 173 Q 1 bb of the Central Excise Rules, 1944 for short the Rules .
It is well settled that the assessee had number claimed Modvat credit at the time when the declarations under Form AR4 were made.
Dr. MUKUNDAKAM SHARMA, J. Leave granted.
The assessee appellant herein seeks to challenge the judgment of the High Court of Rajasthan at Jodhpur in Central Excise Appeal No.9 of 2006.
By its judgment and order dated 26.8.2008, the High Court dismissed the appeal, affirming the order of the Tribunal dated 4.7.2005, which had allowed the appeal of the Revenue and set aside the order of the Commissioner Appeals , who in turn had set aside the order in original.
