Customs, Excise and Gold Tribunal - Tamil Nadu
The Commissioner Of Central Excise, ... vs S.S. Radiators on 12 September, 2001
JUDGMENT
S.L. Peeran
1. The issue in this revenue appeal that arises for consideration is as to whether the commissioner was justified in extending the claim and granted by him. He has upheld the charge of the SCN and confirmed the demand of Rs.5,94,860/- in terms of Rule 9 (2)read with Section 11A of the Act and has also imposed penalty of Rs.50,000/-. However, he has noted that despite appellant not having filed the declaration, they are entitled to benefit of modvat claim and on that ground has directed the AC to examine the duty paying documents presented by them and after due verification, accept their claim.
2. Revenue contends that the same cannot be entertained as respondents had clearly manufactured and cleared the goods. They had not filed the declaration and when the declaration being filed under Rule 57G and modvat rules, the benefit of modvat claim cannot be extended.
3. Heard Ld.DR Shri Soundarajan who reiterates the main ground in the appeal memo. Respondents have not appeared despite several notices issued to them. Therefore, appeal is taken up for hearing for consideration.
4. We notice from the Commissioner's order that he has already upheld the charge made in the show cause notice. On clandestine removal he has also imposed penalty. However, he has accepted the assessee's plea that they have maintained duty paying documents and they are eligible for modvat credit. The Commissioner has directed the AC to verify the documents and grant them benefit wherever they are eligible. Revenue's short plea is that respondents have not taken up the licence and filed declaration and as such they are ineligible to claim modvat credit. This aspect of the matter has been examined by the Tribunal in large number of cases and has been clearly of the view that the benefit of modvat claim cannot be denied in case even where the goods have been removed without payment of duty. This view has since been confirmed by the Apex Court in the case of FORMICA INDIA DIVISION v. CCE., 1995 (77) ELT 511 (SC). This ratio has since been followed in large number of cases, the appeal filed by the Commissioner of Central Excise only on this very ground in respect of similar orders have also been rejected. We do not find any merit in the appeal and hence same is rejected.
(Pronounced & Dictated in Open Court)