TMI Blog2010 (12) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... by Sh. B.L. Narasimhan, Advocate for the appellants. Rep. by Sh. R.K. Verma, DR for the respondent. Per: Sh. Justice R.M.S. Khandeparkar: Heard the learned Advocate for the appellants and DR for the respondent. 2. These appeals arise from the impugned order dated 15.10.2004 whereby the Commissioner while disallowing the credit has confirmed the demand of duty to the tune of Rs. 58,71,215/- alongwith interest thereon besides imposing penalty of equal amount as well as penalty of Rs. 1 lakh against the Senior Manager of the appellants company. 3. The appellants are engaged in manufacture of Zinc, Lead and Copper Sulphate Solutions falling under Chapter sub-heading No. 7901.10, 7801.10 and 2833.10 respectively of the Schedule to the Central Excise Tariff Act, 1985, among some other product. The appellants filed a modvat claim for Rs. 60, 90,338.37 paise under Rule 57H of erstwhile Central Excise Rules, 1944 under their letter dated 24.10.1992. The Assistant Commissioner, Chittorgarh under letter dated 18.11.1998 allowed the modvat credit to the tune of Rs. 1, 19,123/- but disallowed the balance credit amounting to Rs.59,71,215.37. The appellants filed appeal on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps were taken to challenge the order of Deputy Commissioner which was passed on 17.05.2000. However, under letter dated 09.07.2001, the Assistant Commissioner, Chittorgarh was informed that rejection of the claim under Rule 57H did not prohibit the appellants to avail and utilize the said credit in terms of the provision of Rule 57G. There was no reaction from the department to the said communication by the appellants. However, it was only after utilization of the credit in January 2003, the department issued the show cause notice on 28.01.2004 and thereafter the Commissioner passed the impugned order. He further submitted that in terms of the provision of law comprised under Rule 57G as were applicable to the facts of the case, there was no requirement of the departments consent to the appellants for availing and utilizing the credit earned on the inputs which were procured after 25.07.1991. He further submitted that while rejecting the application under 57H, the authority had not disputed the claim of the appellants about the receipt of the inputs after 25.07.1991. Besides the fact that such an application was filed only in October 1992 much after filing the required decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants themselves have deposed that the goods in question were received by them prior to the filing of the declaration and the contention now sought to be raised about the receipt of those goods after declaration are purely after thought. He further submitted that rightly or wrongly, the Deputy Commissioner had rejected the claim of the appellants under Rule 57H and, therefore, unless the appellants had challenged the said order, the same stands valid for all purposes and, therefore, it was not permissible for the appellants to avail and utilize the credit in contravention of the said order. He further submitted that there was no satisfactory documentary proof regarding receipt of the inputs in question after the receipt of the declaration under Rule 57G. The said point is very crucial. It was necessary for the appellants to produce satisfactory evidence in that regard and they having failed to do so, no fault can be found with the impugned order. 6. The fact that during the relevant period in terms of provisions of law comprised under Rule 57G and 57H, the assessee were required to submit a declaration under Rule 57G in relation to the inputs received and that Rule 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases where the inputs were procured or received by the assessee after filing the declaration under Rule 57G, the application filed under the said provision of law by the appellants came to be rejected. In other words, the department accepted the contention of the appellants that the inputs in question were received after filing the declaration under Rule 57G and such declaration were filed in the month of May and June 1991. At the same time, neither the communication dated 18.11.1998, nor the order dated 17.05.2000, nor the show cause notice dated 28.01.2004 anywhere alleged that the inputs in question were received by the appellants before filing of the declaration under Rule 57G. Obviously, therefore, it cannot be said that the appellants were in any manner aggrieved by the order dated 17.05.2000. Rather the said order clarified the doubt in their mind about non-applicability of the provision of Rule 57H and that is apparent from letter dated 09.07.2001 by the learned Advocate for the appellants addressed to the Assistant Commissioner, Chittorgarh on behalf of the appellants. It was clearly stated therein that the order dated 17.05.2000 only disallowed the credit under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s say in that regard and in this case the same has not been done, and therefore question of relying upon on such statement does not arise. Besides as already observed above the authorities while passing the order under Rule 57H had nowhere stated that the goods were received prior to the filing of the declaration. Indeed, if it was so, it was absolutely necessary for the authority to arrive at such finding in the order dated 17.05.2000 so that the party if aggrieved could have challenged the same. In the absence of such finding and that too read with letter dated 18.11.1998, it cannot be contended that the goods were received prior to the declaration. 11. As rightly pointed out by the learned Advocate for the appellants the finding by the Commissioner that the appellants failed to produce the documentary proof particularly in the form of RT-12 return is indeed contrary to the materials on record. The letter dated 18.11.1998 as already recorded above specifically refers to the most relevant documents in the form of invoices and RG-23A Pt. I and Pt. II documents. Those documents were more than sufficient to establish the case of the appellants and in fact on scrutiny of those ..... X X X X Extracts X X X X X X X X Extracts X X X X
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