Customs, Excise and Gold Tribunal - Calcutta
M/S Kesoram Rayon vs Commissioner Of Central Excise, ... on 30 July, 2001
ORDER
Mrs. Archana Wadhwa
1. A total of MODVAT Credit of Rs. 13,026.00 (Rupees thirteen thousand twenty-six) has been disallowed to the appellants and a penalty of Rs. 5,000.00 (Rupees five thousand) has been imposed upon them.
2. After hearing Shri B.N.Kedia, General Manager (Law) of the appellant company and Shri A.K. Chattopadhyay, Learned J.D.R. for the Revenue, I find that the MODVAT Credit has been disallowed on minor procedural irregularities, as discussed below:-
(i) Credit in respect of kit has been disallowed on the ground that the same was not declared under Chapter Heading 8538.88 as per Rule 57T. The appellants have declared the Kits under Heading 8481.99. I find that not declaring the correct heading in the declaration cannot be made the basis for denying the MODVAT Credit is view of the insertion of Rule 57T(13) and the guidelines issued by C.B.E.C. Under Circular No.441/7/99/CX dated 23.2.99;
(ii) MODVAT Credit in respect of Coils has been disallowed that the correct classification of the same under heading 8538.00 was not given by the appellants and instead, the same were declared as falling under Heading No. 8536.90. It is seen that in the invoice, both the Headings have been mentioned by the supplier. In any case, the discrepancy is too minor a discrepancy so as to disallow the Credit on this count;
(iii) In respect of Fuse Base, Credit has been disallowed on the ground that the supplier has not mentioned the sub-heading number. The appellants' contention is that they had duly declared the Fuse Base in their declaration and the non-mention of the sub-heading by the supplier cannot be made the basis for denying them the benefit of the Credit;
I agree with the appellants on this count.
(iv) Credit has been disallowed on Servo, CKD skoda on the ground that as per Invoices issued by M/s. I.O.C., the quantum of duty by applying the unit rate of duty, should be less than what has been availed by the appellants as Credit. The appellants have explained that this has happened on account of clerical error at the end of M/s. I.O.C. Ltd. and on being pointed out by the range Officer, the clerical error was got rectified from M/s. Indian Oil Corporation.
In view of the above contention of the appellants, I direct the original adjudicating authority to look into this fact and if the error has been rectified by M/s. I.O.C., to allow the MODVAT Credit accordingly.
3. similarly, I find that Credit in respect of Flexible Pipe has been disallowed on the ground that the Invoice was not pre-authenticated by the dealer. The appellants' claim that this was subsequently got authenticated. If that be so, the Credit is to be allowed. For the said purpose, I remit the matter back to the original adjudicating authority for looking into the authentication and allowing the Credit.
4. As regards the availability of Credit on Timer under the provisions of Rule 57Q, I direct the Assistant Commissioner to re-consider the appellants' claim in the light of the Law declared by the Larger Bench of the Tribunal in the case of Surya Roshni Ltd. reported in 42-RLT-817(CEGAT-LB) and in the light of the Honourable Madras High Court's decision of Siv Industries Ltd. reported in 2001 (43) RLT-523 (Madras).
5. In nutshell, the appeal is partially allowed as discussed by us and partially remanded.
(Pronounced)