RAJESH BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS writ petition is directed against a show cause notice issued by the Assistant Commissioner, Central Excise Division, Udaipur dated 18 -6 -2003 proposing to withdraw the Cenvat Credit Facility availed by the petitioner on the Light Diesel Oil received on or before 28 -2 -2003 and forming part of stock on 28 -2 -2003 on the basis of law standing as on the date, in terms of Rule 4(1) of Cenvat Rules, 2002, on the ground that since Rule 2(g) has been amended w.e.f. 1 -3 -2003 by which Cenvat Credit Facility has been withdrawn from Light Diesel Oil w.e.f. 1 -3 -2003. Learned counsel contends that in view of the Circular of Central Board of Excise and Customs dated 31 -3 -2003 [hereinafter to be referred to be 'the Assessing Officer'], which is binding on Assessing Officer, the hearing before Assessing Officer is only formal. Therefore, he has been forced to come before this Court at this stage. In support of his contention that he is entitled to avail Cenvat Credit Facility on Light Diesel Oil, as on that date the raw material was received by him. He relies on Rule 4(1) of the Cenvat Rules. Upto 28 -2 -2003 the Light Diesel Oil was an input in respect of which Cenvat Credit facility was available. Therefore, he has rightly availed Cenvat Credit Facility by taking Credit of Duty paid on Light Diesel Oil received by him up to 28 -2 -2003. Once he has availed Cenvat Credit Facility on that raw material, the same cannot be withdrawn later on by subsequently amending the Rules. For the proposition, he relies on Eicher Motors Limited, and Anr. v. Union of India and Ors. reported in 1999 (106) E.L.T. 3 (S.C.) - (1999) 2 Supreme Court Cases 361 and Collector of Central Excise, Pune and Ors. v. Dai Ichi Karkaria Limited and Ors. reported in 1999 (112) E.L.T. 353 (S.C.) = (1999) 7 Supreme Court Cases 448.
(3.) WHILE Rule 3 of Cenvat Credit Rules, 2002 (in short Cenvat Rules) enabled a manufacturer or purchaser of final product to take Cenvat credit of the Duty of Excise paid on any input or capital goods and that Cenvat credit can be utilised for payment of Duty of Excise on any final product, Rule 4(1) of the Rules of 2002 envisaged time or stage at which the manufacturer or purchaser becomes entitled to take the credit of cenvat to be utilised in future for payment of Duty of Excise on final product. Rule 4(1) of the Cenvat Rules reads : 'The Cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer.' ;