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TMI Blog2013 (9) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ennai Branch, by raising the following substantial questions of law:- "1. Whether the CESTAT, Chennai, herein was right in holding that the first respondent can take MODVAT credit in respect of capital goods (Machinery falling under Chapter 84 and 85 of the Central Excise Tariff Act, 1985) received from M/s. Hyundai Motors India Limited and not owned/acquired by them as required under Rule 57Q of the Central Excise Rules, 1944 which was in force at the material period? 2. Whether the CESTAT Chennai herein was right in holding that there was no suppression on the part of the first respondent and they had complied with all the formalities when the facts on the record show that the declaration filed by the first respondent under the erstwhil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to impose penalty under Section 57U(6) of the Central Excise Rules read with Section 11 AC of the Central Excise Act and Rule 173Q of the Central Excise Rules, apart from charging of interest thereon. The assessee filed its reply denying the allegations and submitted that it had not suppressed details as regards the machineries received in terms of invoice issued under Rule 52-A of Central Excise Rules, 1944 by Hyundai Motors India Limited after payment of duty. The assessee had also filed necessary declaration along with RT-12 returns with extract of RG-23 C Part I and Part II/ Rule 52A of the Central Excise Rules. Further submission of learned counsel for the assessee is that the condition of ownership was not required under MODVAT Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the manufacturer was nevertheless required to make a declaration regarding ownership. It pointed out that the assessee had not given any declaration about the nature and the type of acquisition of the capital goods. Consequently, the assessee withheld this information. The Tribunal further considered the decision rendered in the case of SHARDA MOTORS INDUSTRIES v. CCE, CHENNAI-II reported in 2002 (51) RLT 33 (CEGAT Del), relied on by the assessee, in a similarly placed assessee's case receiving capital goods belonging to Hyundai Motors under the leave and licence agreement and held that the details regarding the claim were not there before the Tribunal to apply the decided case to the case on hand. On going through the decision reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in the decided case having a leave and licence agreement with Hyundai Motors. Thus, learned Third Member pointed out that the facts in SHARDA MOTORS INDUSTRIES were identical to that of the present assessee's case. The assessee therein viz., SHARDA MOTORS INDUSTRIES also obtained capital goods from M/s.Hyundai Motors under the leave and licence, agreement like the assessee herein. Having regard to the above, the Third Member (Technical Member) agreed with the view taken by the Judicial Member and allowed the appeal. Having regard to the majority view, agreeing with the assessee, the present appeal is preferred by the Revenue. 6. Learned Standing Counsel appearing for the Revenue submitted that the Tribunal committed serious er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on Modvat on Dies & Moulds. Sir, I am directed to refer to your representation dated 22nd July, 1999 on the subject cited above and to say that the matter has been examined. It is for information that moulds and dies imported by M/s.Maruti can be cleared on payment of duty under Rule 57S(1)(ii) of the Central Excise Rules, 1944, and the credit of the duty so paid can be availed by the job worker provided he follows the procedure laid down the modvat scheme. Yours faithfully, sd/- (P.K.SINHA) UNDER SECRETARY TO THE GOVT. OF INDIA " 8. Going by the said clarificatory letter, which clearly indicates the intention of the Revenue to grant relief in respect of job worker and to the persons who obtained capital goods, we agree with the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir transfer to the job workers. 11. Having regard to the above said fact, which was already considered in the similarly placed assessee's case, we do not find any ground to disturb the order of the Tribunal, more so in the context of the Central Board's clarification issued on 12.8.1999 that the job workers were entitled to claim MODVAT credit as per the Board's circular. We hold that with such understanding indicated in its clarification by the Board contrary to the intention declared therein, it is not open to the Revenue to challenge the order of the Tribunal herein before us. It is a matter of relevance to note that the decision of the Delhi High Court in SHARDA MOTORS INDUSTRIES LIMITED has attained finality and the Department has als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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