[Order per : Archana Wadhwa, Member (J)]. - The short issue involved in the present appeal of the Revenue as to whether the respondents were entitled to avail modvat credit on HSD Oil during the period 8-6-1997 to 19-2-1998 in terms of Rule 57B of the C. Ex. Rules, 1944 when an Explanation to the said Rule 57B was introduced vide Notification No. 5/98 , dated 2-3-1998 by which the term input mentioned in Rule 57B was held to be referring only to such inputs as may be specified in a Notification issued under Rule 57A. In other words, for a manufacturer to avail modvat credit on the inputs specified under Rule 57B, a condition was attached with the said Notification that the inputs must be notified inputs under Rule 57A. As the period involved in the present appeal is prior to 2-3-1998 that is when the said Explanation was introduced in Rule 57B, the Department entertained a view that the said Explanation is retrospective in nature and would apply to the present case also. As the HSD Oil is not a specified input under Rule 57A, the modvat credit was denied to the same by the adjudicating authority after following the requisite procedure of adjudication.
2. On an appeal against the above order, the Commissioner (Appeals) held that the Explanation would come into operation only from the date when the same was issued and relying upon some earlier orders of the Tribunal, the appeal was allowed. It is this order of the Commissioner (Appeals) which is impugned before me.
3. I have heard Shri N.K. Sarkar, ld. JDR who has reiterated the grounds of appeal taken by the Department in their memo. of appeal and Shri K.K. Bhattacharjee, ld. Consultant for the respondents.
4. It has been brought to my notice by the learned Consultant that the issue has since been decided by the Tribunal. He makes a specific reference to the Tribunal’s decision in the case of Ester Industries v. C.C.E., Meerut - [ (T)] wherein the Explanation inserted by Not. No. 5/98 defining the input for the purpose of Rule 57B as specified in a Notification issued under Rule 57A was held to be prospective inasmuch as the Notification itself specifically provides that it will come into force on the date of its publication in the official Gazette. As such the Revenue’s stand that the said Notification adding Explanation should be treated as clarificatory and retrospective in operation so as to cover the period prior to the date of issuance of Notification was rejected. As the issue is covered in favour of the respondents by the above decision of the Tribunal which has also relied upon some earlier decision, I do not find any merit in the Revenue’s appeal. The same is accordingly rejected.