D.N. Patel, J. - (1.) Following are the questions of law raised in this Tax Appeal: - (i) Whether in terms of Sub-rule (5) of Rule 57G of Central Excise Rules, 1944 the applicant take MODVAT Credit within six months from the date of issue of documents namely investigation. No.12 dated 24th April 1999 or the date on which the invoice no.68 dated 29.7.98 was issued which is also the date of debit entry of duty as recorded in the said invoice? (ii) Whether the finding of the learned Tribunal that Rule 57G(5) of Rules, 1944 prescribed that the credit shall not be taken by the manufacturer after 6 months of the date of issue of invoice evidencing payment of duty is correct, legal and proper? (iii) Whether the learned Tribunal should have held that the limitation of months under Rule 57(G)(5) of Rules, 1944 is applicable from the date of issue of invoice under Rule 52A of Rules and it has no concern with date of debit entry of duty? (iv) Whether in the facts and circumstances of the case, the MODVAT Credit availed by the Appellant on 27th April 1999 on the basis of Central Excise Invoice No.12 dated 24th April 1999 issued under Rule 52A of Central Excise Rules, 1944 is well within the time limit as 2 Tax Appeal No.12 of 2006 prescribed under sub rule (5) of Rule 57G of Central Excise Rules, 1944? (v) whether the order dated 24th April 2004 passed by the learned Tribunal is legal, proper and justified? (vi) Whether the learned Tribunal has failed to consider the impact and scope of Rule 57G, 173H and the circular?2. Factual Matrix The raw materials - Zinc Ingots, were purchased by this appellant from M/s Metacon Industries, Howrah with invoice which is at Annexure 1. Column 12 of the said Invoice reflects the facts that there is a payment of prescribed duty at Rs. 90,848/- at the rate of 16%. The payment of duty is revealed from the Invoice at Annexure 1 and upon receipt of the said Invoice, the present appellant has paid the duty on 24th April, 1999. As this appellant is manufacturing Galvanised Steel Strips and as, upon the raw materials Zinc Ingot, duty was paid at Rs. 90,848/- on 24th April, 1999, MODVAT Credit can be availed by the appellant and this MODVAT Credit was availed on 27th April, 1999. Show cause notice was issued by the respondent on 25th June, 1999 for the alleged breach of sub-Rule (5) of Rule 57G of the Central Excise Rules, 1944. Order-In-Original was passed on 01.11.2000 (Annexure 5). Being aggrieved and feeling dissatisfied with by the order passed in Order-In- Original dated 01.11.2000, appeal was preferred before the Commissioner (Appeals) and the said appeal was dismissed vide order dated 25th August, 2003 (Annexure 7). Being aggrieved and feeling dissatisfied with by an order passed by the order passed by the Commissioner (Appeals) dated 25th August, 2003, further appeal was preferred before the CESTAT, Kolkata and the said appeal was dismissed by the CESTAT, Kolkata on 24th August, 2004. Being aggrieved and feeling dissatisfied with by an order passed by the CESTAT, Kolkata, the present Tax Appeal has been preferred raising the aforesaid questions of law.3. Arguments Canvassed By The Counsel For The Appellant Counsel for the appellant submitted that Zinc Ingot is the raw material for manufacturing Galvanised Steel Strips. Zinc Ingots were purchased from M/s Metacon Industries, Howrah. In fact, these goods were earlier sold to M/s B.M. Industries by M/s Metacon Industries, Howrah. At the relevant time when the goods were sold to M/s B.M. Industries, the rate of tax was different and tax amount was also different. These goods were returned by M/s B.M. Industries for refining and remaking to M/s Metacon Industries. These goods were duly acknowledged by the respondent, which is evident from Annexure 2 to the memo of this Tax Appeal. Further, it is a case of the appellant that these goods were sold by M/s Metacon Industries to this appellant along with Invoices which are annexed at Annexures 1 and 1/1, which reveal the payment of duty at different rate and the amount is different which is now at Rs. 94,848/-. Likewise, number of pieces of Zinc Ingot, which were supplied to M/s B.M. Industries and, after returning the same, to M/s Metacon Industries, different quantity was supplied to this appellant and the rates applied to this appellant are also different which were implied to M/s B.M. Industries. Thus, it is submitted by the counsel for the appellant that the tax was paid by this appellant to M/s Metacon Industries on 24th April, 1999, which is nothing to do with the earlier payment of the duty on 29th July, 1998, because, the quantity is different, the rate of duty is different and the amount of the duty earlier paid by M/s Metacon Industries and later on paid by this appellant to M/s Metacon Industries are also different. Thus, it is submitted by the counsel for the appellant that looking to Rule 57G(5) of the Central Excise Rules, 1944, this appellant has a right to take MODVAT Credit within a period of six months from the date of payment of excise duty. Thus, the duty was paid on 24th April, 1999 and, hence, MODVAT Credit could have been availed by this appellant upto 23rd April, 1999. In view of the facts of the present case, the MODVAT Credit has been availed on 24th April, 1999. Thus, there is no violation of sub-Rule (5) of Rule 57G of the Central Excise Rules, 1944. These aspects of the matter have not been properly appreciated by the Assistant Commissioner, Central Excise, Ranchi, nor it has been properly appreciated by the 4 Tax Appeal No.12 of 2006 Commissioner (Appeals), Ranchi, nor the same has been appreciated by CESTAT, Kolkata. 4. Arguments Canvassed By The Counsel For The Respondent Counsel for the respondent submitted that no MODVAT Credit can be availed after lapse of six months from the date of payment of duty as per sub-Rule (5) of Rule 57G of the Central Excise Rules, 1944. It is submitted by the counsel for the respondent that the Central Excise duty was paid by M/s Metacon Industries on 29th July, 1998 and the MODVAT Credit has been availed by this appellant on 27th April, 1999 and, hence, there is a violation of Rule 57G(5) of the Central Excise Rules, 1944. This aspect of the matter has been properly appreciated while passing the Order-In-Original as well as the order passed by the CESTAT, Kolkata. It is further submitted by the counsel for the respondent that looking to Invoices at Annexure 1 and 1/1, the duty paid has been mentioned as 29th July, 1998 and, hence, the MODVAT Credit has been availed by this appellant after period of six months and, hence, this appeal may not be entertained by this CourtReasons:- 5. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that the whole argument in this case is based upon Rule 57G of the Central Excise Rules, 1944 prevalent at the relevant time. For the ready reference, the said Rule reads as under: - "RULE 57G. Procedure to be observed by the manufacturer. - (1) Every manufacturer intending to take credit of the duty paid on inputs under rule 57A or rule 57B shall file a declaration with the Assistant Commissioner of Central Excise having jurisdiction over his factory, indicating the description of the final products manufactured in his factory and the inputs intended to be used in the said final products and such other information as the said Assistant Commissioner may require, and obtain a dated acknowledgement of the said declaration. (2) A manufacturer who has filed a declaration under sub-rule (1) may, after obtaining the acknowledgement aforesaid, take credit of the duty on the inputs received by him. (3) No credit under sub-rule (2), shall be taken by the manufacturer unless the inputs are received in the factory under the cover of any of the following documents, namely :- (a) an invoice issued by a manufacturer of inputs under rule 52A or 100E of the said rules; (b) an invoice issued by the manufacturer of inputs from his depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer provided the depot or the premises, as the case may be, is registered under rule 174; (c) triplicate copy of a bill of entry; (d) a certificate issued by the Appraiser of Customs posted in foreign post office; (e) an invoice issued by a first stage dealer of excisable goods, registered under rule 174; (f) an invoice issued by a second stage dealer of excisable goods registered under rule 174 and duly authenticated by the proper officer; (g) an invoice issued by a dealer on or before the 31st day of August, 1996; (h) an invoice issued by an importer registered under rule 174 and duly authenticated by the proper officer; (I) an invoice issued by an importer from his depot or from the premises of the consignment agent of the said importer provided the said depot or the premises, as the case may be, is registered under rule 174, and duly authenticated by the proper officer; (j) an invoice issued by a first stage or second stage dealer of imported goods registered under rule 174 and duly authenticated by the proper officer; (k) duplicate copy of a bill of entry generated on Electronic Data Interchange System installed in any Customs or Central Excise Commissionerate; (l) a certificate issued by the Superintendent of Central Excise or by the proper officer in the Customs area under rule 57E; and (m) an invoice issued by a manufacturer of final products under sub-rule (3) of rule 57F or sub-rule (1) of rule 57S. Explanation. - For the purposes of this section,- (i) "first stage dealer' means a dealer who purchases the goods directly from - (a) the manufacturer under the cover of an invoice issued under rule 52A or rule 100E or from the depot of the said manufacturer, or from premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer, under cover of an invoice issued under rule 57G; or (b) an importer or from the depot of an importer or from the premises of the consignment agent of the importer, under cover of an invoice issued under rule 57G. (ii) "second stage dealer" means a dealer who purchases the goods from a first stage dealer. (4) ............ (5) Credit shall also not be taken by the manufacturer after six months of the date of issue of any document specified in sub-rule (3) and where the intermediate products manufactured by the user of inputs specified under rule 57J are received by the manufacturer, after nine months. (6) ............ (7) ............ (8) ............ (9) ............(Emphasis supplied) (i) Further, for ready reference, Rule 52A of the Central Excise Rules, 1944 reads as under:- "Rule 52A. Goods to be delivered on an invoice. - (1) No excisable goods shall be delivered from a factory or a warehouse except under an invoice signed by the owner of the factory, or his authorised agent : Provided that when the excisable goods, other than those to which the provisions of Chapter VII-A apply, are removed on payment of duty such invoice shall be required to be countersigned by the proper officer. Explanation. - In this rule, and in any other rule, where the term invoice or gatepass, as the case may be, is used it shall mean- (1) assessee's own document such as invoice, challans, advice or other document of similar nature generally used for sale or removal of excisable goods and which shall contain all the particulars as required under the said Act or in these rules; or (ii) Such other form as the Central Board of Excise and Customs may notify. (2) ............ (3) ............ (4) ............ (5) ............ (6) ............ (7) ............ (8) ............"(Emphasis supplied) (ii) It appears from the facts of the present case that this appellant is manufacturer of Galvanised Steel Strips , for which raw material - Zinc Ingots, are being purchased from M/s Metacon Industries, Howrah. (iii) It further appears from the fact that M/s Metacon Industries, Howrah, had earlier sold the goods - Zinc Ingots, to M/s B.M. Industries. These goods were returned for refining and remaking by M/s B.M. Industries. Duty was paid on 29th July, 1998. After receiving Zinc Ingots by M/s Metacon Industries, Howrah, they, after processing or without processing, re-sold the goods to this appellant with a fresh and new invoice dated 24th April, 1999 (Annexure 1). (iv) Much has been argued out by the counsel for the respondent that looking to Annexures 1 and 1/1, which are Invoices for the Zinc Ingots (raw material) for this appellant, that the Central Excise duty was paid on 29th July, 1998 and, hence, MODVAT Credit cannot be taken by this appellant on 27th April, 1999, because, maximum period prescribed under Rule 57G(5) of the Rule,1994 is six months. This contention is not accepted by this Court mainly for the reasons that; (a) This appellant has purchased Zinc Ingots from M/s Metacon Industries, Howrah upon fresh invoice which are Annexures 1, which dated 24th April, 1999. (b) This appellant has purchased Zinc Ingots, upon which a different rate of duty is mentioned than what was mentioned during transaction between M/s Metacon Industries, Howrah and M/s B.M. Industries. (c) It is also evident from the invoices at Annexures 1 and 1/1 that this appellant has purchased different quantity of Zinc Ingots than what was sold by M/s Metacon Industries to M/s B.M. Industries. It further appears that the price of Zinc Ingots was also different, during earlier transaction between M/s Metacon Industries and M/s B.M. Industries. (d) This appellant has paid the duty on 24th April, 1999. It is an admitted fact. It is not the case of the respondent that the appellant has paid duty on 29th July, 1998. (e) Thus, this appellant has paid the Central Excise duty on 24th April, 1999 and, hence, as per the Rule 57G(5) of the Rule of 1944, within a period of six months MODVAT Credit can always be availed by this appellant. (f) Thus, MODVAT Credit could have been availed by this appellant upto 23rd October, 1999, and hence, correctly this appellant has availed MODVAT Credit on 27th April, 1999, which is absolutely in consonance with Rule 57G of the Rule, 1944. These aspects of the matter have not been properly appreciated while passing the Order-in-Original, the order passed in appeal as well as the order passed by CESTAT, Kolkata in further appeal. (v) Thus, the question of law No.(i) and (ii) is answered to the effect that this appellant can always claim MODVAT Credit on the basis of the invoice dated 24th April, 1999. The period of six months will never starts from 29th July, 1998. 9 Tax Appeal No.12 of 2006 (vi) So far as question of law No.(iii) is concerned, a person who is claiming MODVAT Credit, has paid the duty on 24th April, 1999 under a new invoice and, hence, upto 23rd October, 1999, this appellant can avail the MODVAT Credit and in the facts of the present case, this appellant has availed MODVAT Credit on 27th April, 1999. (vii) So far as question of law No.(iv) is concerned, this appellant can always avail the MODVAT Credit as the payment of Central Excise duty by this appellant was made on 24th April, 1999 and, hence, so far as the person who is availing the MODVAT Credit is concerned, his period of six months will start upon payment of Central Excise duty by him. Here, consistently it is argued by the counsel for the respondent that the period of six months will be started from 29th July, 1998 - the date on which the duty was paid by M/s Metacon Industries, Howrah. In fact, for availing MODVAT Credit, the period will start from the date on which Central Excise duty is paid by a person under a new invoice, who is claiming MODVAT Credit. 6. Thus, all the aforesaid questions have been answered by this Court. This Tax Appeal is, thus, allowed and we, hereby, quash and set aside the Order-in-Original dated 01.11.2000 as well as the Order-in-Appeal dated 25.08.2003 passed by the Commissioner (Appeals). We also quash and set aside the order passed by CESTAT, Kolkata in SP- 587/03/ESM-201/03 dated 24.08.2004. This appeal is, hereby, allowed and disposed of. ;