TMI Blog2003 (9) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... er plant on the ground that the goods used for generation of electricity in the power plant cannot be said to be used for producing or processing or for bringing about any change in any substance for the manufacture of final products and as such the components of power plant are not covered by the definition of capital goods prior to 16-3-1995; that the Commissioner has also held that they had availed the credit prior to filing declaration as required under Rule 57T(1) of the Rules. 3. The learned Advocate, further, submitted that the Appellants had filed a general declaration on 1-3-94 declaring machines, machinery, etc. used in the factory as capital goods; that in the declaration they had also declared caustic soda lye, liquid chlorine and hydro chloric acid as final products; that the Appellants had filed another declaration on 29-10-1994 specifically mentioning generating set and parts thereof as capital goods; that this declaration squarely covers all the items received by them; that in any event, they had filed declaration dated 25-4-95 which covered all the items in question; that in view of the decision of Larger Bench of the Tribunal in the case of Kamakhya Steels Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it has been held by the Larger Bench of the Tribunal in Ballarpur Industries that Rule 57D(2) is required to be fulfilled only by a person who wants to claim benefit under that Rule and if any assessee can otherwise establish that Modvat credit is available according to the other provisions of the rules, he cannot be denied credit on the ground of non-fulfilment of the conditions of Rule 57D(2) ; that the similar views were expressed by the Tribunal in the case of German Remedies Limited v. CCE, Goa - 2002 (144) E.L.T. 606 (T). 6. Countering the arguments, Shri D.N. Choudhary, learned SDR, submitted that Rule 57R(2) specifically provides that credit of the duty allowed in respect of any capital goods shall not be denied or varied on the ground that any intermediate products have come into existence during the course of manufacture of the final product and that such intermediate products are for the time being exempt from the whole of the duty of excise leviable thereon or chargeable to nil rate of duty; that proviso to said sub-rule further provides that such intermediate products are specified as final products in Annexure to Rule 57Q. He contended that components of powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained therein or the manufacturer fails to comply with any other requirements under sub-rule (1). Proviso to said sub-rule (13) further provided that the Assistant Commissioner, however, should be satisfied that duty due on the capital goods have been paid and such capital goods have actually been used or are to be used in the manufacture of final products.... . 8. The Central Board of Excise Customs has issued a Circular No. 441/7/99-CX., dated 23-2-99 clarifying that Notification No. 7/99-C.E. (N.T.) has been issued to insert sub-rule (11) in Rule 57G and sub-rule (13) in Rule 57T of the Central Excise Rules, 1944 so as to empower the Assistant Commissioner of Central Excise having jurisdiction over the factory of the manufacturer to allow credit of duty paid on inputs/capital goods, ignoring minor procedural lapse in filing the declaration or in the invoice/document based on which credit is to be taken. This amendment in Rules and Board s Circular came up for consideration of the Larger Bench of the Tribunal in the case of Kamakhya Steels (P) Ltd. v. CCE, Meerut - 2000 (121) E.L.T. 247 (Tri. - LB) wherein the Tribunal in a case where declaration had not been filed agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be possible and correct to construe the expression used for producing of any goods for the manufacture of final product as synonymous with used for bringing about any change in any substance for manufacture of the final product . Similarly, it would not be correct to construe the expression used for processing of any goods for the manufacture of the final product as synonymous with used for bringing about any change in any substance for the manufacture of the final product . The Larger Bench of the Tribunal has then held that the expression used for producing or processing would not, to use the language of the Supreme Court in J.K. Cotton Spinning Weaving Mills Co. Pvt. Ltd. be limited to ingredients or components used in the process directly and actually needed for turning out or creation of the goods. The Tribunal did not accept the contention of the Revenue that in terms of Explanation 1(a), the item must have a direct nexus with the final product being produced as the said contention is contrary to the decision of the Supreme Court in the Indian Copper Corporation case and J.K. Cotton Spinning Weaving Mills Co. Pvt. Ltd. case. The Larger Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
