Dhirubhai Naranbhai Patel, J. - (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: "I. It appears that there is no breach of the Central Excise Act nor there is any breach of Central Excise Rules, 1944. Modvat credit claimed by the respondent upon certain inputs. It is not in dispute that those inputs have been brought into the factory of the respondent. It is also not in dispute that these inputs have also been utilised for manufacturing process. If these two facts have established, looking to the order in original, then it appears that there is substantial compliance of the Rules, 1944. II. It is also not the case of the appellant that the original importer has also availed the refund of countervailing duty upon the goods imported. There is also no allegation made by this appellant that anyone has even attempted to get the refund of countervailing duty upon the goods imported. In the facts of the present case only the respondent who has claimed Modvat credit. Thus, the apprehension on the part of this appellant that double benefit may not go to the parties is uncalled for and unwarranted for the very same goods. The importer cannot claim refund of the countervailing duty as well as the manufacturer cannot get Modvat credit. This is principally true but here in the facts of the present case there is no allegation levelled by the Excise Department in their show -cause notice. Twice the benefits have been claimed, one by the importer (refund of the countervailing duty) and another by the manufacturer -respondent (Modvat credit upon the inputs). It is the case of the appellant that if one benefit is availed another is not allowed. In the facts of the present case only the manufacturer who is the respondent has claimed the Modvat credit Even department of Central Excise is not knowing whether importer has claimed any refund of countervailing duty." Moreover, looking to Rule 57G of the Central Excise Rules, 1944 there is substantial compliance of the said rule. There is no direct reference of the certificate or declaration to be given by the importer of the goods under Rule 57G of the Act, 1944, but, as argued by the counsel for the appellant there is a reference of this type of declaration to be given by the importer in a circular issued by the Government of India, Ministry of Finance (Department of Revenue) New Delhi bearing F No. B. 22/67/86 -TRU, dated 9th December, 1986.
(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.;