TMI Blog1994 (5) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... n taken by them on 11-11-1988 in their RG 23A Part II in respect of inputs received by them earlier but which remained in stock when they opted for Modvat facility on the said date viz. 11-11-1988. It was held in the order that they had suppressed the fact of not having obtained the permission of Assistant Collector under Rule 57H and the longer period upto five years was invoked for the notice. 2.Shri S.K. Sinha, learned Advocate appeared for the Appellants. He stated that apart from their having a very good case on merits, the longer time limit had also been invoked wrongly as there was no suppression or mis-statement. Explaining his point, Shri Sinha, learned Counsel stated that they had filed their original declaration under Rule 57G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the receipts of inputs in question would be covered by Rule 57G(2) even as per the interpretation thereof given by the Departmental Officers. For this contention raised by him, Shri Sinha relied upon the decision of the West Regional Bench of the Tribunal in Wox Coolers Pvt. Ltd. v. Collector of Central Excise, reported in 1993 (63) E.L.T. 637. The last contention raised by Shri Sinha on the merits of the issue was that Rule 57H does not require prior permission of the Assistant Collector. Such a permission is not expressly provided for in the said Rule. 3. On the question of limitation, Shri Sinha submitted that there was absolutely no suppression or wilful mis-statement of facts. They had rightly taken Modvat credit according to thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Collector and only on his granting the permission. This is clear from the wording of Rule 57H(1) itself. As per this provision, the Assistant Collector may allow credit of duty. That means he has got the discretion. Hence, without his permission, credit cannot be taken for inputs received prior to obtaining the dated acknowledgement of the declaration. The contention of the learned Counsel in this regard is not acceptable, he submitted. On the question of limitation, he pointed out that the Collector had dealt with this question in detail and correctly applied the longer time limit. Accordingly, the Order deserves to be upheld, he concluded. 5. I have considered the submissions. I have perused the record. The submission on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a manufacturer immediately before obtaining the dated acknowledgement of the declaration and granting of such permission is subject to his satisfaction about the inputs lying in stock or their being received after filing the declaration and about the inputs being used in the manufacture of final products cleared after 1-3-1987, it is clear that all these details should be available before the Assistant Collector for him to be satisfied about the same. Such a satisfaction on his part cannot be achieved on his own without an application indicating the stock position and receipts of inputs. Hence, an application is required. Here, no application under Rule 57H has been made and without any data before the Assistant Collector to enable him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng obtained the said permission they had taken Modvat credit which fact was disclosed in their RT 12 and R.G. 23A Part I and Part II statements, they had kept the Department informed of such a position. If it was irregular taking or availment of credit, the notice should have been issued in the normal time limit of six months. The notice was issued very late in this regard and the longer time limit is not applicable in this case. I, therefore, allow the Appeal on the time bar question. 8. As the Appeal is being allowed on the question of time bar, the other contention based on their earlier declaration of August 1987 which plea was not raised by them and the factual aspects relating to which had not been considered by the authorities belo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
