TMI Blog2016 (4) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... dural lapse in not applying for a declaration within a stipulated period. Sub-rule (3) of Rule 57-T of the Rules clearly indicates that if the declaration is not filed within the specified period, the same can be considered after the expiry of period on sufficient cause being shown. In the instant case, the applicant clearly stated that they were not aware of such procedure for claiming Modvat credit and the moment they came to know applied for Modvat credit. The fact, that the applicant applied for Modvat credit has not been disputed. Once this is not disputed, it is not open to the respondents to deny Modvat credit on the ground that permission was not granted by the competent authority. There is no evidence that the application of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction of shade and building of the factory and for staging structure of boiling houses. According to the Department, the applicant had wrongly taken Modvat credit amounting to ₹ 25,25,826.75 on the goods purchased by it without obtaining mandatory permission as provided under Rule 57-T(3) of the Central Excise Rules (hereinafter referred to as the Rules). Since the mandatory procedure was not followed the Modvat credit was disallowed by the Commissioner. The applicant filed an appeal, which was dismissed by the Commissioner. Thereafter the applicant filed a Central Excise Reference Application under Section 35-H, which was allowed by an order dated 23.1.2008 as modified by order dated 30.10.2009. This Court directed the Tribunal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased upon the value or quantity of clearances made in a financial year) or is chargeable to nil rate of duty and also that he shall not claim depreciation under section 32 of the Income-tax Act, 1961 (43 of 1961), or as revenue expenditure under any other provision of the said Income-tax Act, in respect of that part of the value of capital goods which represents the amount of specified duty paid on such capital goods. (3) In case where a manufacturer was not in a position to make the declarations under sub-rules (1) and (2) and makes the declaration subsequently but ordinarily within a period of one month or in exceptional cases, within a further period not exceeding, in any case, more than another two months from the date of receipt o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where a manufacturer could not seek a declaration, but subsequently files an application seeking a declaration, the same shall be considered by the Assistant Commissioner on sufficient cause being shown by the applicant for not filing the application within time. 6. The Commissioner while disallowing the Modvat credit and imposing a penalty held that no permission as provided under Rule 57T of the Rules had been granted by the Assistant Commissioner and therefore, the applicant had wrongly availed the Modvat credit. 7. We find from a perusal of the order that the applicant had filed the application under sub rule (3) of Rule 57T along with an application for condonation of delay showing cause that they were not aware of the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was being exclusively used for erection of a shed and was not exclusively used for production of a final product. Sub-clause (6) of Rule 57-T indicates as to when a Modvat credit could be availed, namely, that if the capital goods are received in the factory premises of the manufacturer under cover of a document specified under Rule 57-G evidencing the payment of duty on such capital goods. 10. In the instant case, it is not disputed that the goods were received in the factory premises and was consumed for the purpose of erection of shades for boiler houses, etc. It is also not disputed that the goods so received showed evidence of payment of duty on such goods. When these two conditions are existing which are the mandatory requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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