TMI Blog2001 (1) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The appellants were availing the benefit of Modvat credit of duty paid on these inputs. On 11-9-89 the appellants filed a declaration which was received in the office of the Asstt. Commissioner of Central Excise on 14-9-89. Scrutiny of the records revealed that the appellants have been receiving goods from time to time on or before 8-9-89. The Department alleged that the credit availed by the appellant was not legally admissible in-as-much as the appellant did not follow the provisions of Rule 57H of the Central Excise Rules, 1944. It was alleged that they did not follow the procedure as they did not obtain necessary permission of the concerned Asstt. Commissioner. Accordingly, a SCN was issued to the appellant on 2-9-94 asking them to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cited some case law. Ld. Commissioner in the impugned order on the various points raised held that since such inputs have been received much before filing the declaration and not immediately before obtaining the dated acknowledge-ment of the declaration as required under Rule 57H, their claim was likely to be rejected even by the Asstt. Commissioner under Rule 57H in its strict application. However, at least they should have brought forward their case with the AC under Rule 57H of the Central Excise Rules, 1944. This also tentamounts to suppression of vital facts by them with the intention to wrongly avail Modvat credit. It is also on record as an admitted fact that they have shown the date of receipt of such inputs in their statutory rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en like the inputs Gate Passes, copies of R.G. 23A Part I II registers with the R.T. 12 returns were submitted to the department every month. 6.Ld. Counsel submits that after 4˝ years, a SCN was issued to the appellants on 2-9-94 alleging that they had availed Modvat credit on inputs received prior to the filing of declaration. The Show-cause Notice relied on the statutory documents filed by the applicants like the declaration dated 11-9-89, R.G.23A Part I II Registers, Gate Passes etc. 7.Ld. Counsel submits that the main contention of the Department is that the appellants had taken credit on the inputs received by them prior to filing of declaration under Rule 57G of the Central Excise Rules, 1944 on 11-9-89; that such a credit is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after the inputs are received in his factory; that the act of taking credit would mean making entries in R.G. 23A Part I II Registers; that the only stipulation in Rule 57G (2) is that the act of taking credit should be done only after the declaration is filed under Rule 57G. It does not prohibit the receipt of inputs prior to the date of filing the declaration under Rule 57G. Ld. Counsel submits that in the instant case the appellants had taken Modvat credit only after the declaration has been filed by them. He submits that the above contention of the appellant is supported by the decision of the Tribunal in the case of Kerala State Electronics Development Corpn. Ltd. v. CCE - 1991 (55) E.L.T. 128. Ld. Counsel also submitted that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of the goods have been taken out from the documents and therefore, it is obvious that there was no suppression; mis-statement etc. with the intention to evade payment of duty. In support of his contention he cited and relied upon the decisions of this Tribunal in the following cases : 1. Kirloskar Oil Engine Ltd. v. CCE - 1993 (65) E.L.T. 371 2. BHEL v. CCE - 1997 (18) RLT. 573 3. M/s. Tony Electronics Ltd. v. CCE contained in Final Order No. 1198/97, dated 23-12-1997. Ld. Counsel submits that Modvat credit was rightly taken by them and therefore, prays that the appeal may be allowed. 11.Shri Rajeev Tandon, ld. SDR submits that in the instant case, declaration was filed by the appellant on 11-9-89 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts had submitted that since the figures have been taken from their records, therefore, there was no case for holding that the demand is covered by proviso to Section 11A and Rule 57-I. Ld. DR submits that in the records now pointed out by the appellants, there is no indication as to when the declaration was filed and therefore, their contention that the demand is time barred is not correct. Ld. DR submits that declaration is a different document and the records from where the dates have been taken are different records and therefore the allegation that there was a mis-statement is correct in-as-much as there was no indication in the records from where the dates have been taken as to when the declaration was filed. Moreover the facts remain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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