Customs, Excise and Gold Tribunal - Mumbai
Vinayak Industries vs Commissioner (Appeals) Central Excise ... on 10 March, 2003
JUDGMENT J.H. Joglekar, Member (T)
1. The applicants are not present but request for disposal on merits. The issue being settle din law. I take up the appeal for final disposal on granting waiver, of predeposit of duty of Rs. 18,665/-.
2. The appellants filed a declaration under Rule 57H of the Central Excise Rules 1944. On 15.6.1998 and took credit on the inputs lying in stock as on 12.6.1998. Show cause notice was issued seeking recovery not under Rule 57I, but under Rule 9(2) of the said Rules read with Section 11A of the Rules. This show cause notice dt. 9.2.99 was issued clearly beyond six months from the date of taking credit. This notice was issued by the Jurisdictional Superintendent. The Dy. Commissioner observed that the credit was claimed on a higher quantity than were shown by the documents covering their import into the factory. On this ground he denied the excess credit and denied the remaining credit. On the ground that credit was taken after six months from the date of receipt of the inputs.
3. The assessees then filed an appeal citing case law [1997 (96) ELT 368 (Tribunal) [M & B Footwear (P) Ltd. v. C.C.E. Meerut] reported as also [2002 (140) ELT 129 (Tri. Kolkatta)] [M/s. Fatembabad Tea Estates v. C.C.E. Shillong] which judgments hold that the limit of six months but by Rule 57G (5) did not come into play where Rule 57H was involved. The Commissioner did not take cognizance but upheld the lower order. Hence the appeal.
4. At the outset the demand is hit by limitation [2002 (50) RLT 854 (CEGAT-Mum.)]. Since the show cause notice was signed by a Superintendent. When the demand was not made within six months of credit having been taken the law that Rule 57H was not bound of Rule 57G(5) has been well laid down in the aforesaid judgments. Therefore ordinarily only the quantity which would be covered under proper invoices would be admissible but in this case due to the defects in the show cause notice. The assessees would get a benefit not due to him, i.e. of being able to take credit even on the excess declared quantity.
5. The appeal succeeds and is allowed.
(Pronounced in Court)