@JUDGMENTTAG-ORDER
Ashutosh Mohunta, J.@mdashThe Revenue has impugned the order (Annexure P-3) passed by the Customs, Excise & Gold (Control) Appellate
Tribunal, New Delhi (for short ''the Tribunal'') dated 18-9-2002, vide which the order passed by the Commissioner (Appeals) was upheld and the
respondent No. 1 was held entitled to claim modvat credit on the inputs as per certificate issued by Central Excise Range Officer.
2. The Department claims the following question of law arise for consideration by this Court:
Whether the benefit of an exemption Notification which is dependent upon fulfillment of certain conditions, can be granted and benefit allowed to
the assessee, even when the conditions which must be fulfilled before the deemed credit can be taken, have not been fulfilled?
3. A perusal of the facts in the present case shows that the respondent-assessee had taken modvat credit on the inputs used by him. He was
allowed to take the credit. However, the case of the Department was that since the assessee has only partly discharged his duty liability, therefore,
unless and until he deposits the entire duty, he is not liable to claim modvat credit. As the respondent-assessee had already received the modvat
credit, therefore, the Department intended to deny the credit and to recover the credit already taken by the manufacturer.
4. A perusal of the facts shows that whatever inputs were used by the manufacturer, he had availed of the modvat credit. In case, any duty was yet
to be paid by him, then the Department was free to proceed for recovery of the duty against the manufacturer. This is what the Commissioner
(Appeals) as well as the Tribunal have held.
5. In view of the above, the question as posed in this appeal is decided against the Revenue and in favour of the assessee. The orders passed by
the Commissioner (Appeals) and the Tribunal are upheld and the appeal is dismissed.
