Customs, Excise and Gold Tribunal - Calcutta
Commr. Of Central Excise, Patna vs M/S. Vishnu Sugar Mills on 4 May, 2001
Equivalent citations: 2001(138)ELT316(TRI-KOLKATA)
ORDER
Smt. Archana Wadhwa
1. The Revenue being aggrieved with the order passed by the Commissioner of Central Excise (Appeals) has filed the present appeal.
2. There are two areanas of disputes. The first pertains to the fact that the appellants has filed the declaration in respect of capital goods after installation of the same. The reasoning taken by the original adjudication authority that intimation was given after installation and as such the Superintendent could not verify the goods has been rejected by the Commissioner (Appeals) on the ground that the provisions of verification was withdrawn in 1994 itself. He has also referred to the Board's Circular No. 181/16/196-CX-6 dated 7.3.95 and the Tribunal's decision as reported in 1997 (89) ELT 793 (T-NRB) . Shri K.K. Banerjee, ld. Advocate also draws my attention to another decision of the Tribunal in the case of Sree Meenakshi Mills Ltd. Vs. Commissioner of Central Excise, Chennai reported in 2000 (38) RLT 208 (CEGAT) holding that credit is not deniable on the ground that the intimation was filed after installation of capital goods. As much, I find that the law is clear on the subject and has been rightly allowed by the Commissioner (Appeals). No infirmity is found on this ground with the order of the Commissioner (Appeals).
3. The second issue is as regards the acknowledgement of the declaration filed on 27.5.94. It has seen that apart from the fact that the appellants has filed the declaration in respect of capital goods on 9.4.94 and 27.5.94. Another declaration dated 25.8.97 was also filed within 10 days of the receipt of the goods in the factory. The Commissioner (Appeals) has observed that the delay of 10 days is covered under the grace period given in the Rule and as such the declaration is deemed to have been filed well in advance. Apart from this fact it is also seen from the impugned order of the Commissioner (Appeals) that the declaration filed by the appellants on 27.5.94 was finally acknowledged by the Assistant Commissioner on 14.5.99 i.e. after a period of about five years and after the adjudication of the present case. It is not understood as the when the Revenue itself has not acknowledged the declaration filed by the assessee for such a long period, how can they object to the assessees taking modvat credit for not taking formal acknowledgement of the declaration. The Revenue cannot expect the assessees to wait for five years for the declaration to the acknowledged by the proper officer and then allow them to take modvat credit. This is nothing but abuse of judicial process. The Commissioner (Appeals) in the order has observed that even though the acknowledgement was made in 1999, the same would relate back to the date of filing of declaration. No infirmity is found in the above view of the Commissioner (Appeals) which is in accordance with law laid down by the judicial and quasi-judicial authorities. The above views are further strengthened by the CEGAT's decision in the case of Commr. of Central Excise, Vs. Lumbini Beverages Ltd. reported in 2001 (44) RLT 868 wherein it was observed that non-availability of dated acknowledgement of the declaration given by the Assistant Commissioner's office under proper receipt will not result in denial of benefit of credit to the assessee.
4. In view of the foregoing, no merits are found in the Revenue's appeal and the same is accordingly rejected.
Dictated and pronounced in the open Court.