TMI Blog1996 (3) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice was not being decided in view of the instructions of the Ministry. The Collector (Appeals) having dismissed the appeal filed by the assessee, the present appeal is filed. We have heard both sides. 2. Appellant manufactures railway wagons. The appellant claims to be essentially a pre-fabricator. Inputs procured by the appellant as well as certain specific items of inputs supplied by the Railways are used in the manufacture or fabrication of wagons. Wagons became chargeable to duty only with effect from 1-3-1975 under TI 68 of the Tariff. From 1-3-1975 to 1-8-1986 assessable value was to be determined on the basis of invoice price under Notification No. 120/75. With effect from 1-8-1986, the notification was rescinded and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of inputs supplied free of cost by the Railways, add the excise duty paid thereon and on the sum total, assess differential duty on the wagons at the rate of duty applicable to wagons. This order is challenged by the appellant on two grounds. 4. It is admitted that in regard to these inputs the appellant did not originally purport to avail the Modvat benefit under Rule 57A of the Central Excise Rules, 1944 (for short, the Rules). The appellant, therefore, did not follow the procedure prescribed under Rule 57G of the Rules in regard to these inputs. Appellant did not file a declaration under Rule 57G(1) of the Rules, did not make relevant entries in RG 23A parts I and II and did not submit to the Superintendent of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be entitled to the benefit of Modvat credit. 5. Shri Malik, SDR has referred to a few decisions of the Tribunal where on account of the failure to submit declaration as contemplated in Rule 57G(1) of the Rules, the Tribunal negatived the claim for benefit of Modvat credit. These decisions are Collector of Central Excise, Bangalore v. Brindavan Alloys Ltd. - 1994 (69) 764 (T), Indian Hume Pipe Co. Ltd. v. Collector of Central Excise, Bangalore - 1995 (77) E.L.T. 885 (T) and P.G. Conductors v. Collector of Central Excise, Jaipur - 1996 (81) E.L.T. 336 (T). The assesees in these cases had opted for Modvat credit even initially but failed to submit declaration or submitted defective declaration contrary to Rule 57G(1) of the Rules. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in air-conditioner cabinets and cleared most of them from the factory either to their branch offices or to their research departments. One of the units was sold. The clearance was made without any declaration and without payment of excise duty on air-conditioners but paying duty on compressors on the basis of gate passes made out as compressors. The assessee took the stand that they had not engaged themselves for the manufacture of air-conditioners and the goods cleared were only compressors. The statutory authorities and the Tribunal rejected their contention holding that assessee manufactured air-conditioners and cleared the same without paying duty on air-conditioners. The High Court declined to interfere with this finding of fact. In r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssable value of the Railway wagons. Having taken such a stand, the appellant could not have either given a declaration or made entries in RG 23A parts I and II or observed the other requirements. We, therefore, direct that Modvat credit will be allowed to be availed by the appellant subject to the jurisdictional Assistant Collector, if he so deems it necessary, verifying the actual quantum of excise duty paid on the inputs in question. If it is found on such verification that the excise duty paid on such inputs was higher or lower than the excise duty shown as having been paid in the statements and copies of documents submitted already by the appellant, actual quantum will be reckoned for the purpose of arriving at the cost of such inputs f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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