TMI Blog2012 (12) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... iscretion in this case. If a public authority is given a discretion to do a thing under a Rule and if chooses not to do so he is bound to record reasons for not exercising the discretion - Since this has not been done order of the adjudicating authority is not sustainable - E/4953/2004 - 629/2012-SM(BR)(PB) - Dated:- 23-5-2012 - Shri Mathew John, J. REPRESENTED BY : None, for the Appellant. Shri R.K. Gupta, AR, for the Respondent. [Order]. When the matter was called none appeared for the Appellant. Therefore record was perused and the Authorized Representative of Revenue was heard. 2. The appeal came up on a few occasions but was adjourned. On the last occasion namely on 18-11-2011 nobody turned up. Today also none is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uto parts (P) Ltd. v. CCE - 2001 (135) E.L.T. 950 (Tri.); (ii) Horological Components v. CCE - 2001 (135) E.L.T. 676 (Tri.-Del.); (iii) Larson and Toubro Ltd. v. CCE - 1994 (53) ECR 595 = 1994 (72) E.L.T. 948 (Tri.) Aluminium Ind. Ltd. v. CCE - 1993 (46) ECR 615 (T) = 1993 (65) E.L.T. 460 (Tri.). 7. The Ld. A.R. for Revenue is relying on the following decisions - (i) CCE v. Avis Electronics Pvt. Ltd. - 2000 (117) E.L.T. 571 (Tri.-LB); (ii) Webel Tools (India) Ltd. v. CCE - 1995 (79) E.L.T. 127 (Tri.); (iii) CCE v. Kirpal Alloys (P) Ltd. - 1997 (93) E.L.T. 800 (Tri.); (iv) Asian Paints Ltd. v. CCE - 1997 (93) E.L.T. 198 (Tri.) 8. I have considered arguments on both sides, the decisions quoted above and as als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration subsequently, the Assistant Commissioner may, for reasons to be recorded in writing, condone the delay in filing of such declarations and allow the manufacturer to take credit of the duty already paid on the inputs even though the procedural requirements laid down under this rule have not been complied with : Provided that such permission may be granted by the [Assistant Commissioner] only when he is satisfied that the - (a) inputs in respect of which credit of duty is to be allowed were received in the factory not before a period of six months from the date of filing such declaration and not before the date of notification issued under rule 57A; (b) amount of duty for which credit is sought have actually been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be taken on the basis of original copy of the invoice and without the transporter s copy of invoice which is the duplicate copy. I find no reason to apply this decision to a declaration filed under Rule 57G(1) especially in a situation where the manufacturer sought to rectify the mistake within four months from taking credit and where the Assistant Commissioner had discretion under Rule 57G(5). 11. It is seen that the Deputy Commissioner has not recorded any reason for not exercising this discretion in this case. If a public authority is given a discretion to do a thing under a Rule and if chooses not to do so he is bound to record reasons for not exercising the discretion. Since this has not been done I find the order of the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
