Customs, Excise and Gold Tribunal - Delhi
Asian Engineering Works vs Collector Of C. Ex. on 16 March, 1999
Equivalent citations: 2000(116)ELT275(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. This appeal has been filed by M/s. Asian Engineering Works against the Order-in-Appeal dated 26-4-1991 denying the benefit of Notification No. 175/86, dated 1-3-1986.
2. Shri J.P. Kaushik, ld. Advocate submitted that the appellants are a Small Scale Unit. They had opted for payment of duty at concessional rate by availing Modvat credit of the duty paid on the inputs as per Clause l(a)(i) of Notification No.175/86. They cleared the goods by payment of duty at concessional rate. However, they could not avail Modvat credit of the duty paid on the inputs. The Department, therefore, issued a show cause notice demanding duty at full rate alleging that the benefit of Notification No. 175/86 would not be available to them.
3. The Assistant Collector confirmed the demand of duty for the period March, 1990. It was also confirmed by the Collector (Appeals) holding that the concessional rate of duty under Clause l(a)(i) of the Notification No. 175/86 is not applicable as the credit under Rule 57A of the CE Rules has not been taken on inputs used in the manufacture of final products.
4. Ld. Counsel submitted that the Department has not disputed that they were not Small Scale Unit and the benefit of Clause l(a)(i) was not available and they are eligible to remove the goods at nil rate of duty under Clause l(a)(ii) of the Notification and in support of the submissions, he relied upon the decision in the case of C.C.E., Chandigarh v. Sul Engineering Works reported in [1998 (29) RLT 536 (Tribunal)]
5. We heard Shri S. Nunthuk, ld. JDR.
6. We find that the issue involved in the present appeal is squarely covered by the decision in Sul Engineering Works in which it was held that mere filing of the declaration under Rule 57G of CE Rules, cannot take away a benefit if otherwise admissible under the notification. If the benefit of concessional rate of duty was not available and the appellant did not avail of Modvat credit, the question of charging duty at full rate does not arise as they will be covered by Clause 1 (a)(ii) of Notification No. 175/86.
7. In view of the above facts and following the ratio of the case of Sul Engineering Works, we set aside the impugned order and allow the appeal.