CEA55 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CEA No. 55 of 2009 Date of decision 20 .7.2009 The Commissioner of Central Excise, Jalandhar .. appellant Versus M/s Mahajan Steel and Allied Industries. ... Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr.Sanjiv Kaushik ,Advocate for the appellant 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. This appeal has been preferred by the revenue proposing following substantial question of law: “ Whether the manufacturer of final products is entitled to deemed credit under Notification No. 58/97 CE dated 30.8. 1997 when the manufacturer/ supplier of inputs has not paid appropriate Central Excuise duty and given a wrong certificate/ no certificate on the body of invoices about duty discharged under Rule 96 ZP of the erstwhile Central Excise Rules, 1944 ?”. The claim of the assessee for Modvat Credit was rejected on the ground that supplier of the inputs who was discharging duty liability under the compounded levy scheme, through issued invoices but did not discharge full duty liability in respect thereof. However, the Commissioner (Appeals) found it as a fact that the deemed Modvat credit availed by the dealer- respondent was based on the invoices issued by M/s Prince Agro and Allied CEA55 of 2009 2 Industries, Mandi Gobindgarh, where input manufacturer had discharged partial duty liability and also on the strength of invoices issued by M/s Shiv Saraswati Steel Industries, Mandi Gobindgarh, where input manufacturers had subsequently discharged full duty liability. The Commissioner (Appeals) had also taken into account that M/s Prince Agro and Allied Industries, Mandi Gobindgarh had already discharged full duty liablity for the period September 1997 to March 1998. In respect of the period commencing from April 1998 it has discharged partial duty liability and a dispute is pending with the department on the question of determination of annual capacity of production. He further observed that in case the annual capacity of production of input manufacture is disputed at the time of issuance of invoice then the scheme of conveyance of deemed credit cannot be put on hold. Accordingly, he has held that the benefit of deemed credit could not be denied to the input purchaser. Having heard the learned counsel for the appellant and perusing the averments made in the appeal we are of the considered view that the matter is no longer res-integra. A Division Bench of this Court vide its judgement rendered on 26.9.2006 in CEA No. 65 of 2006 “The Commissioner of Central Excise, Jalandhar v. M/s Kay Kay Industries” has considered the aforesaid issue. The Division Bench relied on the earlier decision of this Court in the case of Vikas Pipes v. Commissioner of C.Ex., Chandigarh II 2003(158) ELT 680 and a judgment of Hon'ble the Supreme Court in the case of Collector of Central Excise, Vadodra v. Dhiren Chemical Industries (2002) 2 SCC 127. In para 8 of the judgement in Dhiren Chemical Industries's case (supra) Hon'ble the Supreme Court has held as under: CEA55 of 2009 3 “8. An exemption notification that uses the said phrase applies to goods which have been made from duty paid material. In the said phrase, due emphasis must be given to the words "has already been paid". For the purposes of getting the benefit of the exemption under the notification, the goods must be made from raw material on which excise duty has, as a matter of fact, been paid, and has been paid at the "appropriate" or correct rate. Unless the manufacturer has paid, the correct amount of excise duty, he is not entitled to the benefit of the exemption notification.” In the present case it has remained undisputed that the goods in question have been made from duty paid inputs and although there is dispute of his supplier with the department regarding their annual capacity of production, the rate of duty has not been disputed. Therefore, the matter is fully covered against the revenue and in favour of the dealer-respondent. In view of the above legal position, we are of the view that the instant appeal is covered by the aforesaid decisions of this Court as well as of the Hon'ble Supreme Court Dhiren Chemical Industries's case (supa). The appeal is accordingly dismissed. (M.M.Kumar) Judge (Jaswant Singh) 20.7.2009 Judge okg