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TMI Blog1995 (8) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... dvat credit on the only ground that the declaration filed by the appellant in terms of Rule 57G of the Central Excise Rules was filed in the office of the Collector of Central Excise, Hyderabad, though addressed to the Asstt. Collector, as held in the impugned order. The learned Consultant submitted that a declaration was filed addressed to the Asstt. Collector and handed over in the office of the Collector of Central Excise and acknowledged in the office of the Collector. The Collector had forwarded the papers to the same Asstt. Collector after two months. The department initiated proceedings against the appellant on the ground that the appellant was not eligible to take Modvat credit by filing a declaration in the office of the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit. In the present case, the appellant filed a declaration in terms of Rule 57G of the Central Excise Rules on 1-3-1990. The declaration was filed addressed to the proper officer namely, Asstt. Collector though filed in the office of Collector. This declaration has also been acknowledged by the office of Collector on 1-3-1990. The Asstt. Collector also acknowledged the receipt of the declaration on 3-5-1990. The appellant took the credit only on 6-4-1990 in the statutory records and the appellant had utilised the credit only on 13-6-1990. Therefore, it is not disputed that the duty paid inputs were indeed available when the appellant received the dated acknowledgement of the declaration from the concerned Asstt. Collector. It is also bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Trade with regard to the date from which the Modvat facility is to be availed of i.e., the date of receipt of the application by the Range Officer or the date of receipt of the application by the Assistant Collector. Board is of the view that credit under the Modvat scheme has to be allowed to the party from the date on which the declaration is filed by them either with the Range Supdt. or the Asst. Collector. It is the duty of the Range Officer to send the declaration to Assistant Collector immediately after verification." (vide Board's F. No. 267/1/87-CX. 8, dated 5-2-1987). 6. The Bench of the Tribunal in the case of M/s. Metalfab Industries Pvt. Ltd. v. CCE, Delhi, reported in 1994 (74) E.L.T. 734 has held that filing of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s view, the same is set aside and the appeal is allowed. 7. [Assent per : V.P. Gulati, Member (T)]. - I observe that in terms of Rule 57G of the Central Excise Rules, 1944 the requirement is that Modvat Credit can be taken only after a declaration as prescribed under Rule 57G is filed and a dated acknowledgement for the same is obtained from the concerned AC. We have in a number of cases held that so far as filing of declaration is concerned, the same is mandatory and cannot be treated merely as a procedural requirement. In all these cases where declaration had not been filed and Modvat Credit had been taken we have ordered reversal of the same. The Hon'ble Supreme Court in a case where filing of declaration had prescribed as a pre-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication. This is a pre-condition of the Notification. From the above what follows is that requirement of filing of declaration and obtaining dated acknowledgement is a pre-requisite for availing of the benefit when the benefit is contingent upon filing of a declaration. 8. In the present case, the plea is that the appellant had filed declaration addressed to the AC in the Office of the Collector of Central Excise and the said declaration had been received by the Assistant Collector concerned after a period of two months and which was then acknowledged by the AC. The appellant in the meanwhile had taken Modvat Credit in respect of the inputs and also utilised the same on 13-6-1990. The declaration was filed with the Collector on 1-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to the filing of declaration Modvat Credit in respect of the same can be taken under Rule 57A after declaration had been filed and acknowledged by the AC notwithstanding the receipt of the inputs before filing of declaration. In the present case therefore, in terms of Rule 57G, the declaration can be taken to have been filed and acknowledged only on 3-5-1990, the appellant's eligibility to take Modvat Credit in respect of the inputs which had been received can be taken to have been established with reference to that date i.e. 3-5-1990 only and since the inputs were lying on stock on that date Modvat Credit could be taken to have been available on 3-5-1990 in respect of the inputs which were utilised after that date. In view of above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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