TMI Blog2012 (4) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... ted approval to adjust the Modvat credit available in the account of M/s. Amar Polyfab P. Ltd. Not only this, the appellants had intimated the department promptly about the merger, they obtained an amended registration certificate and they also wrote a letter on 14-10-1994 requesting that the declarations, classification lists, price declarations and other documents filed by M/s. Amar Polyfab P. Ltd. may be treated as the declarations/documents filed by M/s. Indra Polyfab P. Ltd. w.e.f. 12-10-1994. Though above noted communication is not in the form prescribed under Rule 57H but it supplies all necessary information to the department. It is undisputed that adjustment of Modvat credit by M/s. Amar Polyfab P. Ltd. was done after 14-10-1994. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate. Pursuant to the letter on 12-10-1994 in the registration certificate of M/s. Amar Polyfab P. Ltd., the name of the assessee was changed M/s. Indra Polyfab P. Ltd. On 14-10-1994, the appellants wrote another letter to Assistant Collector, Central Excise requesting them that Modvat declaration, classification list price declarations and other documents filed by M/s. Amar Polyfab P. Ltd. before the merger, may be treated as that of M/s. Indra Polyfab P. Ltd. w.e.f. 12-10-1994. The appellants, however, did not file declaration under Rule 57H of Central Excise Valuation Rules. The appellants company subsequent to the merger utilized the aforesaid Modvat credit to the tune of Rs. 6,35,398/- against the central excise duty payable by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice is reproduced thus :- 1. That under Central Excise law and rules, it is the buyer of the goods who alone is entitled to take Modvat of duty paid on invoices. 2. That the duty paid inputs having been received by a manufacturer who has filled the requisite declaration under Rule 57G and who uses the inputs in the manufacture of the specified final products or contemplated under Rule 57A and in the manner laid down under Rule 57F is irrelevant to determine the eligibility of Modvat. 7. It is submitted by ld. Counsel for the appellants that perusal of this reply as also the copies of letters written by the appellants to the department dated 10-8-1994 and 14-10-1994 would show that nothing was hidden from the department, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras High Court in the matter of Chemicals and Plastics India Ltd. reported in 1993 (68) E.L.T. 728 (Mad.); Tribunal in the matter of Sushripada Chemicals reported in 1996 (88) E.L.T. 109 (Tri.) and also in the matter of TT Maps Publications reported in 1997 (90) E.L.T. 404 (Tri.). 8. Shri P.K. Sharma, ld. DR appearing for the department on the other hand submits that the Commissioner (Appeals) has rightly dismissed the appeal on this issue because of non-compliance of Rule 57H of Central Excise Valuation Rules and suo motu utilization of Modvat credit without seeking approval/sanction from the department. 9. We have considered the rival contentions and perused the records. 10. The only issue for determination in this appeal is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry information to the department. It is undisputed that adjustment of Modvat credit by M/s. Amar Polyfab P. Ltd. was done after 14-10-1994. Therefore, we are of the view that this is a case of technical lapse for which the appellants cannot be penalized. We are supported in our view by the judgment of Hon ble Madras High Court in the matter of Chemicals and Plastics India Ltd. reported in 1993 (68) E.L.T. 728 (Mad.); Tribunal in the matter of Sushripada Chemicals reported in 1996 (88) E.L.T. 109 (Tri.) and also in the matter of TT Maps Publications reported in 1997 (90) E.L.T. 404 (Tri.). 11. We, therefore, set aside the impugned order by accepting the appeal and the demand of Rs. 6,35,398/- as well as penalty is also set aside. (Pron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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