Chemicals and Plastics India Ltd. vs Collector of C. Ex.

Venkataswami, J.—In W. P. 882 of 1990, the relief claimed reads as follows :-

For the reasons stated in the accompanying affidavit, it is prayed that this Hon''ble Court may be pleased to call for the records of 2nd respondent

culminating the order bearing reference No. 86/90, dated 15-1-1990 as amended by letter No. 96/90, dated 19-1-1990 and issue a writ of

certiorari or any other appropriate writ or order or direction in the nature of writ and quash the same and pass such further or other

orders..................

In W. P. No. 7684 of 1990, the prayer reads as follows:-

For the reasons stated in the accompanying affidavit, it is prayed that this Hon''ble Court may be pleased to call for the records of Second

respondent culminating in his communication bearing reference No....... /90, dated 12-1-1990 and issue a writ of certiorari or any other

appropriate writ or order or direction in the nature of writ and quash the same and pass such further or other orders as this Hon''ble Court may

deem fit and proper..................

Pending disposal of the writ petitions, the Central Board of Excise and Customs, by letter dated 23-12-1992, has issued certain clarification

regarding MODVAT provisions, applicable to a manufacturer factory wise Paragraph 3 of that letter is relevant for our purpose, and it reads as

follows:-

Thus, in case the factory A seeks to merge/amalgamate with factory B, the quantum of credit that can be permitted to be transferred to the books

of factory B would be equivalent to the total of the credit on the inputs which are (i) lying in stock and/or (ii) in process and (iii) contained in the

final products lying in the stock. This would be subject to the condition that such credit has not been availed earlier by the assessee under any other

rule or notification and consequently cannot exceed the balance available in the RG-23A. This is to ensure that the assessee does not avail of the

same input credit more than once. Any excess credit lying in the RG-23A of Factory A, the credit beyond that is specified above, would lapse and

would not be admissible for transfer.

Learned counsel on both sides have fairly stated before me that in view of the Board''s above letter, no elaborate order is necessary except to

indicate the above paragraph in the Order, while disposing the writ petitions.

Mr. S. Subramanian, learned counsel appearing for the petitioner in both the cases, further wanted an observation with regard to W. P. No. 882

of 1990. According to the learned counsel, an appeal is pending before the Appellate Authority, and in the event of the petitioner in W. P. No.

882 of 1990 succeeding before the Appellate Authority in the pending appeal, the fruits of such success must not be denied in view of the disposal

of the writ petition under this Order.

In view of the above, the proceedings impugned in these writ petitions are set aside, and the respondents are at liberty to pass fresh orders, if

necessary, the light of Central Board''s letter dated 23-12-1992, in particular, paragraph 3 extracted above.

It is made clear that the petitioner in W. P. 882 of 1990 in the event of getting any relief form the Appellate Authority, will be entitled to it, in

addition to the relief granted under this Order.

In the result, both the writ petitions are ordered accordingly. No costs.