TMI Blog2014 (8) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/CEX/96 dated 10.10.1996 passed by Commissioner of Central Excise Customs, Pune. 2. The brief facts of the case are that the appellant, SKF India Ltd. had availed MODVAT credit on certain capital goods consumed in their factory in relation to the manufacturing process of various kinds of bearings. The only issue in this case is that the appellant had contravened the provisions of the newly introduced Rules 57T(1) and 57T(2) as the declaration held by appellants were not in terms of a purported Trade Notice issued by the respondent. The period of dispute is from October 1994 to January 1995. Further, some of the credit has been denied on the ground that the items are not capital goods at all. 3. As per the findings of the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications of the said new rules. So the department should have considered the declaration and not have alleged the procedural lapse, as a ground for denial of MODVAT credit. 4.3 Further, appellant contends that they were never confronted by the respondent Revenue during hearings or at any other time with technical reasons of disallowing MODVAT credit on said items as per SCN. Reasonable opportunity was also not granted to the appellant to repudiate the same. 4.4 Appellant counsel further contends that as the only ground on which credit has been disallowed is not that appellant has not filed any declaration, but it is due to not filing declaration in the format purportedly desired by the respondent under Trade Notice dated 08.07.1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Order-in-Original. 6. Heard both the parties. 7. Having considered the rival contentions, I find that the necessary declaration was made by the appellant. I rely on the decision of the Larger Bench in the case of Kamakhya Steels (P) Ltd. Vs CCE, 2000 (121) ELT 247, wherein, this Tribunal held that the question raised before it, whether an assessee could avail MODVAT credit in respect of inputs without filing a declaration was not required to be answered . Tribunal accepted the suggestion made to it by an intervener that the amendment to Rule 57G by insertion of sub rule (2), under that rule resulted in a situation in which the credit could not be denied because a declaration was not filed. Sub clause (ii) of sub rule (2) of Rule 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner, before issuing Show Cause Notice for wrong availment of Modvat credit by the assessee on any procedural grounds, shall conduct enquiries with regard to duty paid nature of the goods as the suppliers send, ensure that necessary information as mentioned in the Notification are available on the invoice and satisfies himself whether the goods have been used or are intended to be used as contemplated in the Modvat Rules. In case the assessee s invoice contains the details viz. description of the goods, assessable value, name and address of the factory or warehouse where the goods are to be received, and if the assessee has filed a declaration as contemplated in the Modvat rules, the Assistant Commissioner having jurisdiction over the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions is without any substance because the real question is that of the principle laid down by a decision. In view of the liberal language of the provision; Mr. Rohtagi fairly and very rightly did not seriously dispute that if any of the items enumerated in explanation 1(a) is used for any purpose mentioned therein for the manufacture of final products, it would satisfy the test of Capital goods . The main contention of Mr. Rohtagi, however, is that the question whether an item falls within the definition of Capital goods would depend upon the user it is put to. The submission is that parts of the items in respect whereof availing of Modvat credit has been allowed by the Tribunal could not be treated as Capital goods as the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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