Customs, Excise and Gold Tribunal - Calcutta
Creative Polypack Ltd. vs Commissioner Of C. Ex. on 24 December, 2002
Equivalent citations: 2003(160)ELT539(TRI-KOLKATA)
ORDER S.S. Sekhon, Member (T)
1. The appellants are manufacturers of poly-quoted paper and they availed Modvat credit on inputs received from various sources. There was a dispute regarding eligibility of 'chrome paper' falling under Chapter Heading No. 4810.10 which was alleged to have been not declared in the declaration filed by them to avail Modvat credit on 15-5-95. This declaration filed read as "paper and paperboards all sorts". The Commissioner (Appeals) has after considering the submissions and the fact that chrome paper was also introduced in the declaration allowed Modvat credit on all inputs received in their factory on or from 15-10-97, the date six months from date of filing this clarificatory declaration. Modvat credit on RG-1 Sl. Nos. 100, 128 and 166 all dated prior to 15-10-97 was denied. Thus in this case the inputs were received six months before the clarificatory declaration was filed. The Commissioner (Appeals) did not give any findings as regards the plea of time being urged by the appellants.
2. The appellants have come, in the present appeal, on the credit even on the inputs received before 15-10-97. The Revenue on the other hand against the very said order has come in appeal on the ground that the intention of the Modvat schemes was very clear and the procedure outlined under Rule 57G was to be observed by the manufacturer and filing of declarations and since the show cause notice in this case was issued on 23-3-98 and the assessee have had submitted that the declaration for the inputs chrome paper was made only on 3-4-98 to the range officer and 16-4-98 to the Asstt. Commr. the credit allowed by the Commissioner (Appeals) before cut out date of 15-10-97 was not correct. The Revenue also contended that Rule 57G(9) empowered the Asstt. Commr. to condone the delay provided the conditions mentioned therein were made and in this view since one of the conditions is six months from the date of filing the declaration the credit on the inputs received in the factory on or from 15-10-97 was permissible and not before that date. The Revenue has also submitted that the Asstt. Commr. was not legally bound to condone the delay even if the conditions mentioned were satisfied until the manufacturer could prove that he was not in a position to make a declaration under Rule 57G(1) for sufficient reasons and at no point of time such disabilities was pleaded. Consequently the Commissioner's condonation of delay and allowing the credits after 15-10-97 was not in order.
3. When the matters were called none appeared for the appellants. There is no application for adjournment. Revenue was represented by Shri T.K. Kar, ld. SDR who reiterated the grounds made in the appeal memorandum.
4. I have considered the submissions made by SDR and the matter on record and find -
(a) That the Larger Bench in the case of Kamakhya Steels Pvt. Ltd. [2000 (121) E.L.T. 247 (T-LB) = 2000 (40) RLT 575] considered the amendments and the Circular of Board No. 441/7/99-CX., dated 23-2-99 which provided that pending cases should be decided in the light of such circular and the amendment to the rules which provided that if a declaration filed under sub-rule (1) did not contain all the details required to be contained therein. The credit cannot be denied if the particulars could be otherwise made available. In the present case there is no dispute regarding the duty paid nature of the inputs and their receipt in the factory and use in relation to the final products and the inputs being covered by the notifications issued under Rule 57A. Similarly it is an undisputed factual position that Board's circulars were binding on the Commissioner and the lower authorities. There is no finding by the Commissioner (Appeals) as regards the limitation pleaded by the appellants. In this view of the matter and the fact that a declaration was made paper and paperboard all sorts' as far as back on 15-5-95 and chrome paper is a sort of paper. I would come to a finding that much ado is being made about the trifling matter of chrome paper sub-heading 4810.10 not having been declared. I would therefore allow the appeal of the Modvat availing appellant in this case by ordering that the embargo placed on denial of Modvat credits before 15-10-97 on chrome paper be lifted and they be allowed the benefit of the credit on receipts of the inputs before 15-10-97 up to 15-5-95. In view of the fact that I find the Modvat credit denied as eligible I find no justification for maintaining the penalty under Rule 173Q as arrived at by the lower authorities. The same is required to be set aside.
(b) Since I find that Modvat credit is eligible with effect from the first declaration made in May, 1995. I do not find any merits in the Revenue's appeal and the same is required to be dismissed.
5. In view of my findings I allow the assessee's appeal and reject the Revenue's appeal. Consequential implementation of the order to be effected. Appeals disposed of in above terms. Stay petition also gets disposed of.