Customs, Excise and Gold Tribunal - Calcutta
M/S Hindustan Petroleum Corporation ... vs Commr. Of Central Exciseee, Cal.I on 24 April, 2001
Equivalent citations: 2001(136)ELT943(TRI-KOLKATA)
ORDER
Smt. Archana Wadhwa
1. Vide the impugned orders, the authorities below have disallowed the benefit of modvat credit to the appellants on two grounds. A major portion of the credit has been rejected on the ground that no prior permission was taken by the appellants before availing the credit of duty under the provisions of Rule 57H. It is on record that the appellants filed an application under the said provisions with their jurisdictional Central Excise Assistant Commissioner on 31.3.94 and availed the credit on 28.5.94. As per the appellants, they could take a credit after obtaining the dated acknowledgement of the declaration and no prior approval was required under Rule 57H (4). The above position is admitted by the Commissioner (Appeals) in his impugned order when he observed that there was no express provisions to obtain the permission from the Assistant Commissioner. However, he has denied the credit that even if the Assistant Commissioner wanted, he could not have been satisfied about the stock of inputs lying on 1.3.94 and the inputs contained in the final product on the said date, simply because of the reason that the declaration was filed at a subsequent date. We do not find force in the above reasoning of the Appellate Authority. The Tribunal in the case of CCEx., Chandigarh Vs. Mahalakshmi Steel Rolling Mills (P) Ltd. reported in 1996 (87) ELT 427 (Tribunal) has held that prior permission is not required to be obtained from the Assistant Collector and the only criteria laid down under Rule 57H is that the inputs should be lying in stock and such inputs have been utilised in the manufacture of final products cleared only after the dated acknowledgment. To the same effect is the Tribunals's decision in the case of Medopharm Vs. Collector of Central Excise, Madras reported in 1995 (79) ELT 268 (Tribunal). As such, we hold that taking of credit before the prior permission of the Assistant Commissioner did not violate the provisions of Rule 57H. As regards the verification of the inputs lying either as such or contained in the final product as on 1.3.94, the position can be verified from the records maintained by the appellants. As such, for the purposes for verification, we remand the matter to the Assistant Commissioner.
2. A portion of the demand has been disallowed on the ground of that whereas the credit was taken earlier but the declaration was filed late under the provisions of Rule 57G. The appellants contention is that Sub-rule 5 of Rule 57G empowered the Assistant Commissioner to condone the delay in filing the declaration. However, while admitting that no separate application for condoning the delay was filed by them, it is submitted that the said prayer was made in their reply to the show-cause notice and as such the Assistant Commissioner should have taken note of the same. In this connection, reliance has been made on the Tribunal's decision in the case of Magnum Industries Vs. Commissioner of Central Excise, Cal. II reported in 1999 (112) ELT 595 (Tribunal). From the order passed by the Assistant Commissioner, we find that the said prayer of the appellants for condoning the delay in filing the application has been rejected by him on the ground that the credit in question has already been availed of and Rule 57G (5) does not provide for post facto approval. We find that the above reasoning of the adjudicating authority against the law laid down by the Tribunal. As such, we set aside the said portion of the order and remand the matter to the Assistant Commissioner for considering the appellants prayer for condonation of delay.
3. The other portion of order passed by the Commissioner (Appeals) vide which he has remanded the matter to the Assistant Commissioner has not been challenged before us. As such, no orders are requires to be passed.
(Pronounced in the Court)