IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Excise Reference No. 6 of 2000 along with Ex. Ref. No. 6/2001, 21/2001 & Ex. Pet. Nos. 1/2001 & 2/2001. Judgment reserved on: 28.8.2008 Date of decision : September 5, 2008 1. Excise Ref. No. 6/2000 Commissioner of Central Excise …Petitioner(s). Versus. M/s Saras Poly Pack …Respondent(s). --------------------------------------------------------------------------------------------------- ---- 2. Excise Ref. No. 6/2001 Commissioner of Central Excise …Petitioner(s). Versus. M/s Engineering Innovation …Respondent(s). __________________________________________________________________ __ 3. Excise Ref. No. 21/2001 Commissioner of Central Excise …Petitioner(s). Versus. M/s Engineering Innovatiion …Respondent(s). __________________________________________________________________ __ 4. Excise Pet No. 1/2001 Commissioner of Central Excise …Petitioner(s). Versus. M/s Premier Industries …Respondent(s). __________________________________________________________________ __ 1. Excise Pet No. 2/2001 Commissioner of Central Excise …Petitioner(s). Versus. - 2 - M/s A.V.Auto Industries …Respondent(s). Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge . The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting ? No For the Petitioner (s):Mr. Sandeep Sharma, Assistant Solicitor General of India ( in all the petitions) For the Respondent (s): Mr. M.M.Khanna, Sr.Advocate with Mr. Dinesh K Chaudhary, Advocate ( in Ex.Ref. No. 6/2000) Shri D.N.Sharma, Advocate vice Mr. Rahul Mahajan, Advocate for respondent (in Ex.Pet. No. 2 of 2001) None for respondent ( in Ex. Ref. Nos. 21 of 2001, 6 of 2001 and Ex.Pet. No. 1/2001) __________________________________________________________________ Deepak Gupta, J. All the aforesaid Excise references & Excise petitions are being disposed of by a common judgment since they have been admitted on the following questions of law:- “Whether gate passes issued prior to 1.4.1994 but endorsed on or after that date would fall under the coverage of entry at S. No.10 in the table to the Notification No. 16/94-CE (Notification No.) dated 30.3.94 and would consequently become eligible documents for taking credit under the Modvat Scheme?” The short question to be decided is whether the gate passes issued prior to 1.4.1994 but endorsed thereafter would be eligible for grant of MODVAT credit. The undisputed facts of the case are that in all the cases the gate passes in respect of the items for which MODVAT credit is claimed - 3 - were issued on or before 31.3.1994. The gate passes were admittedly endorsed after 31.3.1994. According to the revenue the date of endorsement is the date whereby the assessee is entitled to claim credit and since the endorsement was made after 31.3.1994, no credit for the same could have been claimed. The Assessing Authority, Commissioner (Appeals) as well as Central Excise and Gold (Control) Appellate Tribunal, have all rejected the contentions of the revenue. The Gujarat High Court in Commissioner versus. Gujarat Medicraft Pvt. Ltd. ( Ref. Applications No. 16, 26, 27/2000 decided on 22.11.2000, held that if the gate passes are issued prior to 1.4.1994, the assessee can claim credit under the MODVAT scheme for the same even if the same endorsement has been made after 1.4.1994. Following the judgment of the Gujarat High Court, a Division Bench of the Punjab and Haryana High Court in CCE, Commissionerate-I, Chandigarh versus Suraj Udyog, 2002 (144) ELT 293 (P& H) has taken the same view. The relevant portion of the circular No. 16/94-CE(NT) dated 30.5.1994 reads as follows:- “Provided that the documents have been issued before the Ist April, 1994 and the credit under the said rule has been taken on or before the 30th June, 1994.” The only requirement is that the document should have been issued before 1.4.1994. Admittedly, the gate passes were issued prior to the said date. There is nothing in this notification which talks about - 4 - the endorsements. Therefore, we are of the considered opinion that the view taken by the Gujarat High Court and the Punjab & Haryana High Court is correct. In view of this clear cut position and the judgments cited above, we hold that the assessee is entitled to claim credit under the MODVAT scheme in respect of those gate passes which were issued prior to 1.4.1994 but were endorsed on or after the said date. Accordingly, the question is answered in favour of the assessee and against the revenue. All the excise references/petitions are accordingly disposed of. ( Deepak Gupta ), J. September 5, 2008 ( V.K.Ahuja ),J. s.