M/S WELCURE DRUGS AND PHARMACETICALS LTD V. COMMISSIONER OF CENTRAL EXCISE JAIPUR

EXCIA/118/2017

AI Insights

The case revolves around the appellant, M/s. Welcuredrugs and Pharmaceuticals Ltd., who sought a cash refund of unutilized CENVAT credit following the closure of their factory. The credit arose due to a disparity between the duty paid on a manufactured product, Odoxin, and the input duties on raw materials, leading to an accumulation of unutilized CENVAT credit. The Tribunal initially dismissed the appellant's claim, leading to this appeal. The High Court examined substantial questions of law regarding the applicability of Rule 5 of the CENVAT Credit Rules, 2004, which pertains to the refund of accumulated CENVAT credit.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 692684 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 07-02-2018
• Assessment Year: misc
• Other Referred Cases: Union of India vs. Slovak India Trading Co. Pvt. Ltd., Commissioner of C. Ex., Nasik vs. Jain Vanguard Polybutlene Ltd., Commissioner of Central Excise vs. Birla Textile Mills, M/s Rama Industries Ltd. vs. Commissioner of Central Excise, Chandigarh, Eicher Motors Ltd. vs. Union of India, Collector of Central Excise, Pune vs. Daiichi Karkaria Ltd.
• Laws Referred To: Cenvat Credit Rules, 2004
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SIDDHARTH RANKA
• Assessee Lawyers: BHARAT RAJCHANDANI; SAMEER JAIN; DAKSH PAREEK; ARJUN SINGH
• Keywords: CENVAT credit; Closure of Factory; Duty paid; Input credit; Refund
• Section: 5

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Central/Excise Appeal No. 118 / 2017 M/s. Welcuredrugs and Pharmaceuticals Ltd., Having Office At AT B-9&10 Laxmi Tower, LSC, Block-C, Saraswati Vihar, Delhi 110034, Through Its Authorized Signatory Shri D.C. Jain, S/o Late T.C. Jain Aged 77 Years R/o E-1052, Saraswati Vihar, Delhi 110034 ----Appellant Versus Commissioner of Central Excise, Jaipur NCR Building, Statue Circle C-Scheme, Jaipur 302005 ----Respondent _____________________________________________________ For Appellant(s) : Mr. Bharat Rajchandani with Mr. Sameer Jain Mr. Daksh Pareek Mr. Arjun Singh For Respondent(s) :Mr. Siddharth Ranka _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Order 07/02/2018 1. By way of this appeal, the appellant has challenged the judgment and order of Tribunal whereby the Tribunal has dismissed the appeal of the assessee. 2. This Court while admitting the appeal on 02.11.2017 framed the following substantial questions of law: “i) Whether, in the facts and circumstances of the present case, the Appellate Tribunal was correct, in law, and justified in holding that the refund cannot be allowed under Rule 5 of the Cenvat Credit Rules, 2004? ii) Whether in the facts and circumstances of the present case, Appellate Tribunal was correct, in law, and justified in holding that there is no (2 of 14) [EXCIA-118/2017] provision for allowing refund of accumulated Cenvat Credit on closure of the factory?” 3.0 The facts of the case are that Appellant was manufacturing medicine, namely, Odoxin, which was governed by direct price control order. 3.1 A duty of 4% was paid on Odoxin whereas input credit utilized in manufacture of Odoxin suffered a duty of 10 percent on local inputs and 14% on imported inputs. As a result, there was wide gap between CENVAT credit availed and duty paid on the final product. 3.2 The appellant was unable to utilize the CENVAT credit by paying the duty on final product resulting into a credit balance of Rs. 1,34,45,987/- lying in CENVAT credit. 3.3 The appellant closed their factory on 31.03.2011 and applied for cash refund of the CENVAT amount of Rs.1,34,45,987/- lying in their CENVAT credit account. 3.4 The appellant's application for cash refund has been rejected by the Asst. Commissioner and Commissioner (Appeals). 4. In view of closure of the industry, the amount which was entitled for, counsel for appellant contended that the Tribunal has committed an error in rejecting the claim of the appellant. 5. Learned counsel for appellant placed reliance on Union of India vs. Slovak India Trading Co. Pvt. Ltd., 2006 TIOL 469 HC KAR CX, wherein it has been observed as under: “5. There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. (3 of 14) [EXCIA-118/2017] Admittedly, in the case of hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light or the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three question as framed in para 17 against the Revenue and in favour of the assessee.” 6. Against the aforesaid decision SLP was dismissed by the Supreme Court in Union of India vs. Slovak India Trading Co. Pvt. Ltd. - 2008 (223) E.L.T. A170 (S.C.). 7. The same was subsequently followed by different High Courts. He further relied upon following decisions: 1. Union of India vs. Slovak India Trading Co. Pvt. Ltd., 2006 TIOL 469 HC KAR CX, wherein it has been observed as under: 1. The Union of India is before us raising the following questions of law in para 17 in the light of the order of the Tribunal dated 9.8.2005 passed in Excise Appeal No. 934/2004 on the file of the Customs, Excise and service Tax Appellate Tribunal, Bangalore. a) Whether under the facts and circumstances of the case the Tribunal is right in ordering for refund even if there is no provision in Rule 5 of Cenvat Credit Rules 2002, to refund the unutilized Credit? b) Whether under the facts and circumstances of the case the Tribunal is right in ordering for refund even if there is no production and there is no clearance of finished goods? c) Whether under the facts and circumstances of the case the Tribunal is right in holding that (4 of 14) [EXCIA-118/2017] respondent is entitle for refund even if it goes out of Modvat Scheme or Company is closed? “Rule 5. Refund of CENVAT Credit: Where any inputs are used in the final products which are cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, the CENVAT credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification: Provided that no refund of credit shall be allowed if the manufacturer avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty.” 5. There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17 against the Revenue and in favour of the assessee.” 2. Commissioner of C. Ex., Nasik vs. Jain Vanguard Polybutlene Ltd., 2010 (256) ELT 523 (Bom.), wherein it has been observed as under: “The above judgment was subject matter of Special Leave Petition. The Special Leave Petition had been dismissed by a reasoned order [2008(223) ELT A170 (S.C.). In the said order, the statement of the Learned Additional Solicitor General was recorded by the Apex Court, who (5 of 14) [EXCIA-118/2017] had conceded before the Apex Court that the various judgments relied upon by the Karnataka High Court were not appealed against by the Revenue. Notwithstanding this concession, it is not possible to say that the S.L.P. was dismissed in view of the concession given by the Additional Solicitor General. No concession was given with regard to the correctness of the judgment of Karnataka High Court. This judgment was confirmed by the Apex Court on its own merits for the reasons stated therin. The Tribunal was wrong in observing that the SLP was dismissed because the Learned Additional Solicitor General had conceded the correctness of the High Court's judgment. What was conceded by the Learned Additional Solicitor General was that the various judgments relied upon by the Court were not appealed against and not the correctness of the judgment ot Karnataka High Court the Apex Court in Birla Corporation Ltd. v. Commissioner of Central Excise – 2005 (186) E.L.T. 266 (S.C.) held that when question arising for consideration on facts almost identical to previous case, Revenue cannot be allowed o take different view. Following this principle, we cannot take any other view other than the one approved by the Apex Court, which came before it from the Karnataka High Court.” 3. Commissioner of Central Excise vs. Birla Textile Mills, 2016 (325) ELT 651 (Del.), wherein it has been observed as under: “5. It is inter alia observed by the Tribunal that it is the discretion of the Authorities to allow the refund in cash under certain circumstances. In coming to this conclusion, the Tribunal referred to certain decisions as well. In the facts of the present case, it was found that the unit of the respondent-assessee originally located at Delhi has been shifted to Baddi where it is very much functioning. However, in that area, the assessee was exempt from paying central excise. In these circumstances, no useful purpose would have been served in crediting the amount in the CENVAT account.” 4. M/s Rama Industries Ltd. vs. Commissioner of Central Excise, Chandigarh, 2009 TIOL 100- HC-P&H-CX, wherein it has been observed: (6 of 14) [EXCIA-118/2017] \"a) Whether refund in cash of Cenvat credit can be allowed in case of closure of the manufacturing unit? b) Whether impugned order of the Tribunal is justified in view of judgment of Karnataka High Court in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd., 2006 (2001) E.L.T. 559 (Kar.)?\" We have heard learned counsel for the parties and have perused the paper book with their able assistance. The matter is covered against the revenue by the Division Bench judgment of Karnataka High Court in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd., 2006 (2001) E.L.T. 559 (Kar.), wherei n it has been held that Rule 5 of Cenvat Credit Rules, 2002 (for brevity, 'the Rules') in terms does not prohibit refund in cash of Cenvat credit. On a further appeal against the aforesaid judgment of the Division Bench to the Supreme Court, Special Leave Petition has been dismissed by holding that the revenue did not file any appeal against many such orders passed by Tribunals at Delhi and Mumbai. The Tribunal at Delhi has passed one such order in the case of Eicher Tractors v. CCE, Hyderabad, 2002 (147) E.L.T. 457 (Tri.- Del.), whereas the Tribunal at Mumbai had passed three such orders, namely, Shree Prakash Textiles (Guj.) Ltd. v. CCE, Ahmedabad, 2004 (169) E.L.T. 162 (Tri.- Mumbai); CCE, Ahmedabad v. Babu Textile Industries, 2003 (158) E.L.T. 215 (Tri.- Mumbai); and CCE, Ahmedabad v. Arcoy Industries, 2004 (170) E.L.T. 507 (Tri.- Mumbai). The Tribunals in all the aforementioned cases have held that the assessee is entitled to refund in cash of the amount deposited if the assessee has gone out of the Modvat Scheme or his unit is closed. The Supreme Court has considered all the aforementioned decisions. Before the Supreme Court it was conceded by the revenue that no appeal had been filed against the orders of the Tribunal. Therefore, the order of the Division Bench of Karnataka High Court was upheld. 5. Eicher Motors Ltd. vs. Union of India, 1999 (106) ELT 3 (S.C.), wherein it has been observed: (7 of 14) [EXCIA-118/2017] “6. We may look at the matter from another angle. If on the inputs the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein and, therefore, we may have no hesitation to hold that the rule cannot be applied to the goods manufactured prior to 16.3.95 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods.” 6. Collector of Central Excise, Pune vs. Daiichi Karkaria Ltd., 1999 (112) ELT 353 (SC), wherein it has been observed as under: “17. It is clear from these Rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgement thereof. It is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. There is no provision in the Rules which provides for a reversal of the credit by the excise authorities except where it has been illegally or irregularly taken, in which event it stands cancelled or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available.” (8 of 14) [EXCIA-118/2017] 8. Counsel for the respondents Mr. Ranka appearing for the Department has relied upon the following decisions of the Supreme Court. 1. Kunhayammed and Ors. vs. State of Kerala and Anr., (2000) 6 SCC 539, wherein it has been observed: “27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the apex court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question (sic) open. Or it sometimes briefly lays down the principle, may be, contrary to the one (9 of 14) [EXCIA-118/2017] laid down By the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.” 2. Narcotics Control Bureau vs. Dilip Pralhad Namade, (2004) 3 SCC 619, wherein it has observed: “13. Coming to the plea regarding long passage of time it is to be noted that the two orders passed by this Court in SLP (Crl.) Nos. 1136/2002 and 434/2003 referred to above do not lay down any principle of law of invariable nature to be universally applied. Furthermore, disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order passed in any SLP at threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. (see Union of India and Ors. v. Jaipal Singh (2004)ILLJ431SC . This court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal and that too when the SLP was being dismissed. What is impugned before this Court can be reversed or modified only after granting leave and then assuming appellate jurisdiction over it. If the order impugned before this Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage (see Kunhayammed and Ors. v. State of Kerala and Anr. [2000]245ITR360(SC) and Sri Ramnik Vallabhadas Madvane and Ors. v. Taraben Pravinlal Madhvani [(2004) 1 SCC 497 : (2003) 8 Supreme 208]” 3. Raja Jagdambika Pratap Narain Singh vs. Central Board of Direct Taxes and Ors., (1975) 4 SCC 578, wherein it has been observed as under: “11. Any legal system, especially one evolving in a developing country, may permit judges to play a creative role and innovate to ensure justice with out doing violence to the norms set by legislation. But to invoke judicial activism to set at thought legislative judgment is subversive of (10 of 14) [EXCIA-118/2017] the Constitutional harmony and comity of instrumentalities. So viewed, the appeal of Sri Manchanda, for relief in the name of justice must fail. If the statute speaks on the subject the judge has to be silent and stop. In a contest between morality and legality, the court, in clear cases has no option. Mere, both sides agree that the assessments are final, that limitation has long ago run out, that the Central Board has no judicial power to upset what has been decided by lesser tribunals. Not being a fringe area for judicial activism to play the submission must suffer rejection. 14. When at the end of the legal tether, the appellant made a plaintive plea for considerateness based on good conscience. No doubt, we feel this is a case where, had the party not been optimistically asleep but has diligently appealed, the tax could not have been recovered by the State. We equally see some compassionate merit in his complaint that a few of the assessment orders made misleading reference to the pendency of the High Court being seized of the identical legal issue. But it is no good alibi in explanation of the sin of gross delay in conning to the High Court. It is doubtful if the Central Board can exercise any judicial power and direct refund. Nor is there a statutory duty cast on it to consider applications for refund and so a writ of mandamus could not issue from the Court. Even so, it is always open to the State, where the justice of the case warrants reconsideration of the levy of a tax illegally imposed, to view the situation from an equitable standpoint and direct refund, wholly or in part. This perhaps, is a case where a liberal approach may well be justified. The Court has, however, jurisdiction only when there is a statutory duty. There being none, the issuance of a writ hardly arises. We endorse the observations of the High Court that, despite inordinate delay, the appellate authority, if moved under Section 30(2), will give due regard to the happenings in between, in exercising its power of condonation of delay in filing, appeals. We also make it clear that no observation made in this judgment with regard to delay on the part of the assessee in moving the High Court under Article 226 shall be taken into account to the prejudice of the assessee while considering the condonation of the delay on the part in preferring the appeal/appeals, if any, filed by him to the appropriate authority under the Act.” (11 of 14) [EXCIA-118/2017] 4. Late Nawab Sir Mir Osman Ali Khan vs. Commissioner of Wealth Tax, Hydrabad, 1986 Supp SCC 700, wherein it has been observed: “It is, however, well settled that dismissal of special leave petition in limin e does not clothe the decision under appeal in special leave petition with the authority of the decision of this Court. See in this connection the observations in Daryao v. State of U.P. [AIR 1961 SC 1457]. It may be mentioned as was rightly observed by a Full Bench of the Allahabad High Court in Sahu Govind Prasad v. CIT [(1983) 144 ITR 851, 863 (All)] special leave is a discretionary jurisdiction and the dismissal of a special leave petition cannot be construed as affirmation by this Court of the decision from which special leave was sought for.” 5. Fuljit Kaur vs. State of Punjab and Ors., (2010) 11 SCC 455, wherein it has been observed as under: “There is no dispute to the settled proposition of law that dismissal of the Special Leave Petition in limine by this Court does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition has been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for the reason, which may be other than merit of the case. Nor such an order of this Court operates as res judicata. An order rejecting the Special Leave Petition at the threshold without detailed reasons therefore does not constitute any declaration of law or a binding precedent. [Vide The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust and Anr. AIR 1978 SC 1283; Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. The Workmen and Anr. AIR 1981 SC 960; Indian Oil Corporation Ltd. v. State of Bihar and Ors. AIR 1986 SC 1780; Supreme Court Employees' Welfare Association v. Union of India and Ors. AIR 1990 SC 334; Yogendra Narayan Chowdhury and Ors. v. Union of India and Ors. AIR 1996 SC 751; Union of (12 of 14) [EXCIA-118/2017] India and Anr. v. Sher Singh and Ors. AIR 1997 SC 1796; V.M. Salgaocar & Bros. (P) Ltd. v. Commissioner of Income Tax AIR 2000 SC 1623; Saurashtra Oil Mills Assn., Gujrat v. State of Gujrat and Anr. AIR 2002 SC 1130; Union of India and Ors. v. Jaipal Singh (2004) 1 SCC 121; and Y. Satyanarayan Reddy v. Mandal Revenue Officer, Andhra Pradesh (2009) 9 SCC 447].” 9. We have heard counsel for the parties. 10. Before proceeding with the matter, it will not be out of place to reproduce Rule 5 of the Central Excise Act which reads as under: “Rule 5. Refund of CENVAT Credit: Where any inputs are used in the final products which are cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, the CENVAT credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification: Provided that no refund of credit shall be allowed if the manufacturer avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty.” 11. In our considered opinion, in view of the observations made by the Karnataka High Court in Slovak India Trading Co.’s case (supra) and also in Collector of Central Excise, Pune’s case (supra) by the Supreme Court, which reads as under: 17. It is clear from these Rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material to be used by (13 of 14) [EXCIA-118/2017] him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgement thereof. It is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. There is no provision in the Rules which provides for a reversal of the credit by the excise authorities except where it has been illegally or irregularly taken, in which event it stands cancelled or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available. 18. It is therefore, that in the case of Eicher Motors Ltd. v. Union of India, [1999 (106) ELT 3] this Court said that a credit under the Modvat scheme was “as good as paid.” 12. Four different High Courts have also taken the view against which the SLP was preferred and earlier also the Tribunal granted refund against which the SLP was not preferred. In that view of the matter, the principle of estoppel applies as once the department has accepted the view taken by the Tribunal it will not be appropriate to challenge the same by choosing the present assessee. 13. In our considered opinion, the judicial discipline is required to be maintained. The Tribunal cannot distinguish the High Court judgments. They are bound by the High Court judgments even jurisdictional High Court and at the most they can (14 of 14) [EXCIA-118/2017] refer it back prior to distinguish on facts but no authority has been made. Full Bench decision of the Tribunal has to be followed. 14. Hence, we answer the issue in favour of assessee against the department. 15. The appeal is allowed. The view of Karnataka High Court which has been confirmed by the Supreme Court is required to be approved and the same is approved. (VIJAY KUMAR VYAS)J. (K.S.JHAVERI)J. Chauhan/70 "