Customs, Excise and Gold Tribunal - Delhi
M/S Modi Rubber Ltd. vs Cce, Meerut on 10 April, 2001
ORDER
Lajja Ram
1. These are 12 appeals filed by m/s Modi Rubber Ltd. being aggrieved with the common order-in appeal dated 24.9.1998 passed by the Commissioner of Central Excise (Appeals), Ghazibad. They were heard together and are being disposed of by this common order.
2. The Matter relates to the availment of modvat credit in respect of the inputs which were alleged to have not been declared correctly in the declaration filed for availing of the benefit of modvat credit under Rule 57-A of the Central Excise Rules, 1944 (hereinafter referred to as the 'Rules').
3. All the appeals were heard together on 13.3.2001 when Shri M.P. Dev Nath, Advocate, submitted that the issue for consideration in all these appeals related to the modvat credit and the allegation levelled against the appellants was that proper declarations had not been filed prior to the availment of modvat credit. The learned Advocate submitted that he was not pressing the appeal no. E/846/99-NB(S) in which under challenge is the impugned order-in-appeal insofar as it related to the adjudication order no. 39/97 dated 14.4.1997 for February, 1996 and the allegation related to the petroleum products.
With regard to the rest of the appeals, the learned Advocate submitted that similar matter had come up for consideration before the Larger Bench of the Tribunal in the case of Kamakhya Steels (P) Ltd. vs CCE, Meerut, 2000 (40) RLT 575 (CEGAT-LB). The Larger Bench of the Tribunal after taking note of the Board's Circulars and the amendments made in Rule 57-G and 57-T of the Central Excise Rules, 1944 had remanded the matter to the jurisdictional Asstt. Commissioner of Central Excise with certain observations. He pleaded that in similar terms, these matters be also remanded to the jurisdictional Asstt. Commissioner of Central Excise to re-examine the admissibility of modvat credit afresh.
In reply, Shri M.D. Singh, SDR, stated that a proper declaration for availing of the benefit of modvat credit was a mandatory requirement and wherever it was considered appropriate the relief has already been given by the appellate authority. There was no correlation between the declarations filed and the inputs received in other cases and the modvat credit had been rightly rejected by the appellate authority. There was no catalogue of the goods in dispute. He pleaded for rejection of all the appeals. In support of his contentions, he relied upon the following decisions-
(i) CCE, New Delhi vs Avis Electronics Pvt. Ltd., 2000 (117) ELT 571 (T-LB); and
(ii) Balmer Lawrie & Co. Ltd. vs CCE, Kanpur, 2000 (116) ELT 364 (T-LB).
4. I have carefully considered the matter. Among the various inputs in respect of which the modvat credit had been denied by the jurisdictional Asstt. Commissioner of Central Excise under different orders-in-original, the Commissioner of Central Excise (Appeals), Ghazibad, had already allowed the benefit of modvat credit in respect of (i) P.O.Box Strapping: (ii) Lubricants/Greases/Lubricating oil; (iii) Air Bag Circulars; and (iv) Doting Ink.
5. As regards the Light Diesel Oil and Transforerm Oil used within the factory for generation of electricity, credit has been allowed for the period from 16.3.1995 onwards when under Notification No. 11/95-CE(NT) dated 16.3.1995, serial nop. (d) to the Explanation to Rule 57-A of the Central Excise Rules was added. For the period prior to 16.3.1995, the modvat credit was not allowed as the amendement was not retrospective.
6. The modvat credit on petroleum products was not allowed. The appellants' counsel did not press this point arising out of the order-in-original no. 39/97 dated 14.4.1997 for the period February, 1996. Hence, appeal no. E/846/99-NB(S) is dismissed as not pressed.
7. There were certain inputs in respect of which it was alleged that no declaration had been filed with regard to them. The Commissioner of Central Excise (Appeals), except two inputs - Accicura DCS (Dicyclohexy1 Benzothiazy1 Sulphenamide) and Vulcador T, accepted the contention of the assessees, and took a view that those inputs were covered by the declarations. He observed that in view of the Board's Circular No. 219/53/96-CX dated 4.9.1996, broad description declared of the inputs was a sufficient compliance of the modvat rules.
8. With regard to Accicura DCsand Vulcador T, he discussed as under-
Item Accicure DCS has been declared as CBS HPS. No supporting evidence was putforth before me either in grounds of appeal or during personal hearing by the appellants to show that CBS/HBS was accicure DCS and according iv I am not convinced as regard the declaration filed for this particular item. Quite identical is the situation in the case of item Vulcacit-T declared as Vulcacit-T.To me filing declaration is a condition precedent and is a (SIC) Hon'ble Tribunal order No A/917/98-NB dt. 20.8.98 in the case of M/s Garind India (P) Ltd. vs. CCE Meerut. Accordingly upholding the (SIC) Asstt. Commissioner on the items Accicure DCS &b Vulcador-T as correct. I disallow modvat credit on these items.
9. In the appeal, the appellants had submitted that the different suppliers described these products differently and that they had given a general description to these inputs which should meet the requirement of the law. Before the Commissioner of Central Excise (Appeals), they have pleaded that in all cases there was no dispute with regard to the duty paid nature of the inputs, their use in the manufacture of their final products and their accountal as per Central Excise Rules.
10.In the case of Pawn Tyres Ltd. vs CCE, Chandigarh, 1994 (73) ELT 212 (T), the Tribunal observed in para 5 that since a very large number of rubber chemicals are used in the tyre and rubber industry and some of these chemicals are sold by the manufacturers under their respective trade names, it may not be practicable for the manufacturer to specifically mention in the declaration filed under Rule 57-G of the Central Excise Rules, all such chemicals required by them as inputs. When there was no dispute regarding the duty paid character of the inputs received and their use in the manufacture of the final products, too narrow an interpretation of Rule 57-G was to be avoided.
This decision was followed by the Tribunal in the case of J.K.Industries vs CCE, Jaipur, 1995 (79) ELT 335 (T).
11. The learned Advocate had referred to the Larger Bench decision of this Tribunal in the case of Kamakhya Steels (P) Ltd. vs CCE, Meerut, 2000 (40) RLT 575 (CEGAT-LB), where the question for consideration was whether an assessee can avail modvat credit n respect of the inputs without filing a declaration. The Larger Bench took note of the amendments to Rule 57-G and 57-T as per notification no. 267/6/92-CX dated 23.2.1999 (appearing in 1999 (31) RLT M-61), and remanded the matter t the jurisdictional Asstt. Commissioner of Central Excise to examine the admissibility of modvat credit afresh.
12. I find that the matter has not been examined by the authorities below in the light of the Board's Circulars as referred to in para 6 of the Larger Bench decision in the case of Kamakhya Steels (P) Ltd. vs CCE, Meerut, supra. I, therefore, agree with the learned Advocate for remanding these matters [except appeal no. E/846/99-NB(S) which is dismissed as not pressed], to the jurisdictional Commissioner of Central Excise (Appeals) who will re-examine the matter afresh and then after affording an opportunity to the assessee will pass speaking appealable orders, as per law.
13. All the eleven appeals are thus allowed by way of remand.
Appeal NO. E/846/99-NB(S) is dismissed as not presseed.