EXECUTIVE ENGINEER (CIVIL), MPEB Vs. ASSTT COMMR, C EX, UJJAIN

JUDGEMENT

(1.) Petitioner is assailing Orders Annexure C', D', E' and F' passed by the respondents. Although the petition is captioned, as a petition under Article 226/227 of the Constitution of India, in fact it is purely a petition under Article 227 of the Constitution of India in view of the nature of the claim laid in the petition.

(2.) Necessary and relevant facts for our purpose are that petitioner holds registration under Rule 174 of the Central Excise Rules, 1944. It is engaged in manufacture of PCC Poles falling under CH-68 of the Central Excise Tariff Act, 1985. Petitioner availed MODVAT Credit in terms of Rule 57A of the Rules in respect of input (Cement) used in the manufacture of PCC Poles. During the scrutiny of RT 12 returns, along with input invoices for the month April and May, 1995, it was noticed that during the said period, petitioner wrongly availed of MODVAT credit of Rs. 78,830/- and utilised it for payment of duty on the final product. As a result, a notice was issued to the petitioner to Show Cause why the MODVAT credit amounting to Rs. 78,830/- be not disallowed and recovered under Rule 57- I read with Section 11-A of the Act and further why a penalty be not imposed under Rule 9(2) read with Rule 173Q of the Rules.

(3.) The reply submitted by the petitioner was found unsatisfactory therefore, after affording opportunity of personal hearing the adjudicatory authority passed the Order dated 30-9-1997-Annexure C to the petition. By the said order it was held that during the month of April and May, 1995, petitioner wrongly availed of and utilised MODVAT Credit to the tune of Rs. 78,830/- on the strength of invalid invoices which were not in conformity with requirements of Rules, and therefore, the MODVAT Credit of Rs. 78,830/- being inadmissible was disallowed and recovery was ordered under Rule 57-I read with Section 11-A of the Act. A penalty of Rs. 4000/- was also imposed under Rule 173Q. Further interest @ 20% on Rs. 78,830/- was levied from 29-11-1995 i.e. three months after the date of Show Cause Notice (29-8-1995) in terms of Rule 57-I(3). Matter was carried in appeal, but the Commissioner (Appeals) dismissed the appeal by order dated 27-5-1998-Annexure-D to the writ petition. Against the said order, further appeal was preferred to the Customs, Excise & Gold (Control) Appellate Tribunal'. Said appeal was partly allowed by the Tribunal vide Order dated 9-12-1999 [2000 (118) E.L.T. 448 (Tribunal)], Annexure E, so as to set aside the levy of interest on the duty amount but the Tribunal confirmed the duty demand of Rs. 78,830/- together with the penalty of Rs. 4000/-. Thereafter, an application for rectification was filed which was rejected by the Tribunal vide Annexure-F holding that there was no error apparent either on the face of record or the order dated 9-12-1999. Hence present writ petition under Article 227 as stated above.