Customs, Excise and Gold Tribunal - Mumbai
J.B.M. Tools Ltd., Autoline Stampings ... vs Commissioner Of Central Excise, Pune on 17 July, 2001
Equivalent citations: 2002(144)ELT561(TRI-MUMBAI)
ORDER
Gowri Shankar, Member (Technical)
1. The stay applications filed by J.B.M. Tools Ltd. and by Autoline Stamplings Pvt. Ltd. were listed for hearing to day. however, since we find that the common issue for consideration in these appeals is covered by decisions of this Tribunal, we have, with the consent of both parties, decided to take up these appeals for disposal with that of SKF Bearing India Ltd., after waiving deposits.
2. The common issue for consideration in these appeals is the eligibility to modvat credit of capital goods, manufactured in the case of SKF Bearing India ltd. (SKF for short), and purchased in the case of the other two appeals. SKF manufactured these machines during the period and form 1.3.1994 to 31.3.1995. It filed a declaration, required under Rule 57T, on 31.3.1999. J.B.M. Tools Ltd. acquired them between April 1998 and June 1999 and field the declarations in July and August 1999. Autoline Stampings acquired the goods between October 1998 and January 1999 and filed the declaration in August 1999. Credit has been denied in the orders of the Commissioner (in appeal E/2136/96) and Commissioner (Appeals) in the other appeals on the ground that the provisions of Rule 57T (1) & (3) have not been complied with. Sub rule (1) requires a declaration containing particulars of the capital goods to be field before their receipt in the factory. Sub rule (3) granted a period of one month ordinarily from the date of receipt of capital goods, but extendable to a maximum of three months by the Assistant Commissioner on sufficient cause, to file a declaration empowering the Assistant Commissioner to condone the delay on sufficient cause being shown. This was the position from 1.3.1997. Prior to this date, the requirement were contained in Rule 57Z (1) and the second proviso thereunder.
3. It is not denied that the declarations were not field within the extended time of three months available under this rule. The common contention before us is that by the subsequent amendment sub rule (13) was inserted into rule 57T which provided that credit shall not be denied if the declaration under sub rule (1) does not contain all the particulars required to be contained therein, or the manufacturer fails to comply with any other requirement of sub rule (1).
4. The amended rule which came into force from 9.2.1999 was in existence when the declarations of J.B.M. Tools Ltd and Autoline Stamping Pvt Ltd were filed. SKF had filed its declaration earlier to the amendment. The reason that the Assistant Commissioner advances for not accepting the declaration so that sub rule (13) does not "offer any protection in cases where no declaration at all is filed". This is the argument that the departmental representative reiterates. Clause (i) of sub-rule (13) refers to credit under Rule 57G and we are not concerned with that. Clause (ii) has two parts. The first is applicable in cases where a declaration filed under sub rule (1) of Rule 57T "does not contain all the details required to be contained therein." The second deals with cases where "the manufacturer fails to comply with any other requirement." The only requirement other than the one contained in sub-rule (1) tat we are able to visualise is that of filing a declaration and obtaining a dated acknowledgement. The question of the manufacturer obtaining a dated acknowledgement doe snot arise unless the department chooses to issue it. The only requirement that the manufacturer is required to comply with is that of filing a declaration. In cases where a manufacturer files a declaration but it does not contain all the details, the first portion of clause (ii) of rule 57T (13) will apply. In other cases, where no declaration is field at all, the second clause will apply. This is the only meaning that we are able to give to the somewhat involved wording of the sub rule.
5. This also appears to be the reasoning behind the decision of the larger bench in Kamakhya Steels (P) Ltd. vs. CCE 2000 (121) ELT 247. The bench held in that decision that the question raised before it, whether an assessee could avail modvat credit in respect of inputs without filing a declaration, was not required to be answered. The bench did not go into the question of there being two series of decisions of the Tribunal, which required resolution. It accepted the suggestion made to it by an intervener that the amendment to rule 57G by insertion of sub rule (2) under that rule resulted in a situation in which the credit could not be denied because a declaration was not filed. Sub clause (ii) of sub rule (2) of Rule 57G is identical with sub clause (ii) of sub rule (13) of Rule 57T. The ratio of the decision of the larger bench would therefore apply to the facts before us. The only ground on which credit has been denied is thus without basis.
6. Appeals allowed. Impugned orders set aside. Consequential relief where due in accordance with law.