Customs, Excise and Gold Tribunal - Delhi
M/S. British Scoffolding India Ltd. vs C.C.E., Jaipur on 26 April, 2001
ORDER
S.S. Kang
1. The appellants filed this appeal against the order-in-appeal passed by the Commissioner (Appeals).
2. In this case, the benefit of MODVAT Credit in respect of M.S. Channels and N.A. Iron and Steel bars was denied as inputs on the ground that the appellants had not specifically made any declaration to avail the credit on these inputs.
3. Heard both sides.
4. The contention of the appellants is that the appellants had declared M.S. rounds and M.S. ANGLES falling under heading 7214.90 of Central Excise Tariff as inputs. The goods, in question, also fall under the same heading. The contention of the appellants is that they had broadly mentioned the inputs in their declaration. The appellants also relied upon the notification No. 7/99 dated 9.2.99 whereby Rules 57 G and 57 T of Central Excise Rules are amended. The contention of the appellants is that as per this amendment, the credit was not to be denied on the ground that the declaration filed under sub Rule (1) does not contain all the detailes required to be contained therein or the manufacturer fails to comply with any other requirement under sub-rule (1). The CBEC issued the circular No. 441/7/99 dated 23.2.99 to clarify that notification no. 7/99 will be applicable to pending cases and after considering this notification and the Board's circular, the larger bench of the Tribunal in the case of Kamakhya Steels (P) Ltd. vs. C.C.E. reported in 2000 (40) R.L.T. 575 remanded the matter to the adjudicating authority to decide afresh. Paras 6, 7 & 8 are reproduced below:
6. Shri A.R. Madhav Rao, ld. Advocate as an intervener submitted that the question referred to the larger bench in the instant case need not be answered and matter be remanded to the Adjudicating Authority to examine the issue afresh in the light of amendment to Rules 57G and 57T as per Notification No. 7/99-CE(NT) dated 9.2.99, and the two Circulars (M.F. DR. Letter F.No. 267/6/92-CX dated 30.1.92 and Circular No. 441/7/99-CX dt. 23.2.99( [reported in 1999 (31) RLT M61]. He referred to the relevant amendment (7/99-CE(NT) dt. 9.2.99) which is as under:-
"7/99-CE(NT), dt. 9.2.1999: In exercise of the powers conferred by Section 37 of the Central Excise Act, 1944 (1 of 1944), of Central Government hereby makes the following rules further to amend the Central Excise Rules, 1944, namely:-
1. (1) These rules may be called the Central Excise (3rd Amendment) Rules, 1944.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Central Excise Rules, 1944
(a) in rule 57G, after sub-rule (10), the following sub-rule shall be inserted, namely,-
"(11) Credit under sub-rule (2) shall not be denied on the grounds that -
(i) any of the documents, mentioned in sub-rule (3) does not contain all the particulars required to be contained therein under these rules, if such document contains details of payment of duty, description of the goods, assessable value, name and address of the factory or warehouse:
(ii) the declaration filed under sub-rule (1) does not contain all the details required to be contained therein or the manufacturer fails to comply with any other requirements under sub-rule (1):"
7. He submitted that circular are binding on the authorities functioning under the statute. Referring to the Circular No. 441/7/99 dated 23.2.99, he said that Circular was issued to follow certain guidelines in respect of Notification No. 7/99 dated 9.2.99 while considering the admissibility of modvat credit and further it was specified in the circular that guidelines are applicable to the pending cases and the pending case are to be disposed of accordingly. In this context, he referred to the decision of the Supreme Court in the case of Mathew M. Thomas Vs Commissioner of Income Tax reported in 1999 (33) RLT 227 (SC)=1999 (111) ELT 4 (SC) wherein it was held that proceedings shall include proceedings at the appellate state. Particularly, he drew our attention to the para 8 of the said judgement which reads as under:-
"8. It is well settled that the word "Proceedings" shall include the proceedings at the appellate stage. It is sufficient to refer to the judgement of this Court in Garikapati Veeraya V.N. Subiah Choudhary & Ors. - AIR 1957 S.C. 540 wherein the Court said at the page 553:-
(i) That the legal pursuit of remedy, suit appeal and second appeal are really but steps in the series of proceedings all connected by the intrinsic unity and are to be regarded as one legal proceedings"
Hence we are unable to persuade ourselves to agree with the view expressed by the Full Bench of the High Court in the Judgement under appeal that the Circular would apply only to proceedings pending before the Component Authority"
5. We are not convinced with the arguments advanced on behalf of the Revenue that amended provisions and Circular referred to above are not applicable to the point in issue. On going through the amendment to Rule 57G particularly with reference to sub-clause II of 2(a) of 7/99-CE(NT) dated 9.2.99 the Circular and the case law, we find that matter is required to be re-examined as it was rightly pointed out by the intervener. In the view we have taken, the matter is remanded to the Jurisdictional Assistant Commissioner to examine the admissibility of modvat credit for the period covered under Appeal No. E/1840/95 and to pass an order in accordance with law.
6. In view of the above decision of Larger Bench of the Tribunal, the impugned order is set aside and the matter is remanded to the adjudicating authority to decide afresh after affording an opportunity of personal hearing to the appellants. (Dictated in Court).