TMI Blog1992 (12) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... he allegation made in the show cause notice is that the applicants had purchased copper wire falling under Chapter sub-heading 7408.19 and have taken Modvat credit of the said amount in their RG 23A Part II without declaring the input in the Modvat declaration filed on 21-12-1990 under Rule 57G of Central Excise Rules, 1944. The Department s case is that they are not entitled to the said modvat credit on account of non-filing of declaration of the input under Rule 57G of the Central Excise Rules, 1944. The assessee has contended that they had filed Modvat credit on 19-7-1988 mentioning therein Copper wire bars. Copper wire rods, Copper wire thicker than 14 SWG, Copper wire finer than 14 SWG and the said declaration had been received in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that there were earlier declarations and subsequent declarations. He also relied on the order passed by this Bench in the case of C.C.E. v. V.K. Industries (Order No. A-255/91/NRB, dated 29-5- 1991). 3. Shri Ashok Mehta, learned DR submitted that the declarations filed on 19-7-1988 as well as on 23-9-1988 had in fact disclosed all the details but their representative having struck off the details of inputs, it meant that they were not utilising the same and also it meant that there was no declaration. Therefore, the Modvat credit cannot be utilised without filing declaration under 57G of the Central Excise Rules. 4. We have carefully considered the submissions made by both the sides and have perused the citation relied by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any supporting documents. In the result, we allow the stay application by dispensing with the pre-deposit of the balance duty amount demanded by taking into consideration the deposit of Rs. 40,000/- already made and the recovery stayed till the disposal of the appeal. 5. [Contra per : N.K. Bajpai, Member (T)]. - I have seen the order proposed by learned Member (Judicial) Shri S.L. Peeran but regret my inability to agree with his findings that the applicants have a prima facie case for dispensing with the requirement of deposit of duty. 6. The admitted position is that the applicants after submitting a declaration under Rule 57G on 19-7-1988, revised it on 23-9-1988. On receipt of a letter, dated 14-11-1990 from the Assistant Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s misguided not being borne out of the record could, at best, be taken up at the stage of final hearing of the appeal. I agree with this view and propose rejection of the application. In view of the difference of opinion, the Hon ble President may be pleased to refer the matter to the Third Member to decide the difference of opinion between the Members :- (i) Whether the pre-deposit of duty amount has to be dispensed with and recovery stayed till the pendency of appeal as held by Member (Judicial)?; or (ii) Whether the stay application has to be rejected as the applicants do not have a prima facie case as held by the Member (Technical). Sd/- (N.K. Bajpai) Member (Tech.) Sd/- (S.L. Peeran) Member (Judl.) The points of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the Central Excise Department. On this basis it has been contended that the deletion of the relevant item from the declaration filed by the applicants was purely a technical error. 10. Considering the fact that the applicants had filed a detailed declaration under Rule 57G on 23-9-1988 covering the input on which Modvat credit has been held as inadmissible under the impugned order, I am of the view that subsequent deletion of the said item from the declaration by a representative of the applicants during his visit to the Central Excise office was purely unintentional and the lapse was, therefore, essentially technical in nature. On these considerations prima facie it appears that the applicants have a good case on merits. They have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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