TMI Blog1990 (7) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... re us. 2. The Collector (Appeals) vide his above mentioned order held that the time limit under Section 11A would come into play in respect of demand arising from the disallowance of Modvat credit. 3. When the appeal was taken up for hearing, Sri N.C. Mitra, learned consultant appearing on behalf of the respondents, raised a preliminary point. He stated that in the appeal there is an incidental mention for condonation of delay, and there is no separate condonation of delay application. He stated that there are certain decisions in similar cases that there should a separate COD application, and in its asbsence, the present appeal may not be entertained. He also stated that, as pointed out in their cross objection, the reasons cited for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the issue involved in the present case is not of short recovery of duty or non-recovery of duty or erroneous refund, but disallowance of Modvat credit wrongly taken. The Collector (Appeals) also had upheld the decision of the Assistant Collector on merits but had decided the appeal of the respondents only on the limited question of time bar. The respondents had not filed any cross objection against that part of the order of the Collector (Appeals) where he had upheld the finding of the Assistant Collector that the respondents were not entitled to take Modvat credit prior to their filing a declaration under Rule 57G. Though he conceded that there are a number of Tribunal decisions, including some by this Bench itself, on the applicability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appeal filed by the department may be dismissed, and the department directed to grant the relief admissible to them consequent to the appellate decision passed by the Collector. 8. We have considered the rival submissions. We are in agreement with the finding of the Collector (Appeals) that the time limit will apply even in cases of wrong availment of Modvat credit, notwithstanding the apparently self-contained provisions of Rule 57-I. Where Modvat credit has been wrongly taken but not utilized, it may be possible to support the view that such wrongfully taken credit which had not been utilized may be reversed without bringing the time limit under Section 11A. Such an approach would be justified till October 1988 amendment of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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