TMI Blog1999 (1) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging contravention of Rules 57Q, 57R and 57T of the Central Excise Rules, 1944. The allegations given in the show cause notice are: (i) The assessee had taken credit of duty paid on capital goods on the strength of original invoices in violation of Rule 57T. (ii) The assessee had taken credit of duty paid on capital goods on the basis of xeroxed documents which are marked as duplicate for transport by using rubber stamp in contravention of Rule 57T. (iii) The assessee took credit of certain capital goods which were used in the manufacture of cotton carded/combed falling under Tariff Heading No. 5202.00 which was not specified as a final product in the Annexure to Rule 57Q prior to 21-10-1994-The show cause notice proposed to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-S envisages granting of proportionate credit for preparatory machines and their spares which were received prior to 21-10-1994 is not correct. Seeking recourse to the amended provisions of Rule 57-S to redefine capital goods is not proper. The terms 'capital goods' are explained under Rule 57Q and not under Rule 57-S. (C) Notification No. 23/94-CE. (N.T.), dated 20-5-1994 seeks to make amendments to Rule 57-S and does not intend to enlarge the concept of capital goods so as to include the goods used in relation to the manufacture of final product. The term capital goods is well explained/defined under Rule 57Q only and not under Rule 57-S as held by the Commissioner (Appeals). Rule 57-S deals with the manner of utilization of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such the Commissioner (Appeals) order to reexamine this issue is not correct arid not as per law. (F) As per Rule 57T(3), no credit of duty shall be taken unless such capital goods are received in the factory with documents as specified under Rule 57G evidencing payment of duty. In the instant case photostat copies of invoices marked as duplicate copy by rubber stamp cannot be taken as valid documents for the purpose of Modvat credit in view of the provisions of Rule 57T read with Rule 52A. Credit can be allowed on the basis of the documents that are prescribed by the Central Government for the purpose of availing credit. This view has been upheld by the Tribunal in the case of Collector of Central Excise v. Jai Bhavani Steel Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such yarn was not exempted prior 21-10-1994 and therefore the ratio of that case-law was not applicable in their case. (d) Date of credit is 5-4-1995, the machines were received in April-September, 1994 and the declaration was filed before taking credit as per Rule 57T(1) and after 21-10-1994. Hence the conditions of Rule 57T are satisfied. Further, Modvat credit on capital goods is not conditional to the date of receipt of goods, the only condition being that duty is paid after 1-3-1994, which is satisfied in this case. He cites Trade Notice No. 30/96-C.E., dated 31-5-1996 of Mumbai Commissionerate. (e) He cites 1998 (101) E.L.T. 495 (Tribunal) 1995 (79) E.L.T. 718 (Tribunal) and 1997 (90) E.L.T. 361 (Tribunal) which holds that be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture both dutiable and exempted final products, such dual usage would render it ineligible for Modvat credit. Therefore, the word exclusively assumes great significance and I find that in such dual usages, as long as the machines were atleast also used for producing dutiable synthetic yarn, then such an 'exclusive' usage would stand precluded and credit would be available. However, as this is a question of fact, the same needs to be verified by the jurisdictional Assistant Commissioner. Since the Order-in-Appeal had already correctly remanded the matters of invoice verification to him (as noted above), therefore this issue also needs to be remanded to the Assistant Commissioner for verification. 8. In view of the aforesaid fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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