TMI Blog2007 (11) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. 2. The question of law formulated for entertainment of the appeal are as follows: "1. Whether the credit of duty on capital goods can be allowed when the respondents have not filed statutory declarations which is a mandatory provisions under Rule 57T(1) of CER 1944? 2. Whether credit of duty on capital goods can be allowed when the respondents have not intimated about the date of receipt of capital goods into the factory which is a mandatory provisions under Rule 57T(2) of CER 1944? 3. Whether the Hon'ble Tribunal is right in holding that the Revenue has no case that any of the substantive conditions for capital goods credit was not f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the remaining amount of Rs.15,46,362/- (Rs.14,43,365 + Rs.1,02,997) under Rule 57U and imposed penalty in a sum of Rs.3 lakhs under Rule 173Q(i)(bb). Aggrieved by the order of the Assistant Commissioner, the respondent filed a statutory appeal before the Commissioner (Appeals), who by his order dated 16.3.2000 allowed the credit of Rs.1,02,997/- for which statutory declaration was filed late but before condonable time limit of three months and confirmed the remaining part of the order of the Assistant Commissioner. The respondent carried the matter on further appeal before the Customs, Excise and Service Tax appellate Tribunal, which by its order dated 24.1.2005 set aside the order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. 6. It could be seen from the order of the Tribunal that in the instant case the capital goods credit was disallowed to the assessee on the ground that the relevant modvat declarations under Rule 57T were filed beyond the prescribed period of three months. The Tribunal has also recorded a finding to the effect that no other reason has been cited for denial of the credit. Thus, the final fact finding authority has recorded a finding to the effect that the capital goods credit was disallowed to the assessee on the ground that the relevant modvat declaration under Rule 57T was filed beyond the period prescribed. The Tribunal has taken note of the amendment notification No.7 of 1999 C.E.(N.T) dated 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er requirements under sub- rule(1). Provided that the Assistant Commissioner of Central Excise having jurisdiction over the factory of manufacturer intending to take credit is satisfied that duty due on the inputs has been paid and such inputs have actually been used or are to be used in the manufacture of final products, and such Assistant Commissioner shall record the reasons for not denying the credit so in each case." (b) in rule 57T, after sub-rule (12), the following sub-rule shall be inserted, namely: (13) Credit under sub-rule (6) shall not be denied on the grounds that - (i) any of the documents specified under sub-rule (3) of rule 57G does not contain all the particulars req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow credit of duty paid on inputs/capital goods ignoring minor procedural lapses in filing the declaration or in the invoice/document based on which credit is to be taken. However, the Assistant Commissioner should ensure that inputs/capital goods have suffered duty and are being used/are to be used in the process of manufacture. The Assistant Commissioner is also required to record the reasons in file for allowing Modvat credit in each case. 2. The Assistant Commissioner, 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 at the suppliers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive conditions of modvat credit were fulfilled to the satisfaction of the original authority. 9 . Having regard to the above said amendment brought out in notification No.7/99-CE (N.T.) dated 9.2.1999 and the subsequent circular No.441/7/99-CX dated 23.2.1999 and taking note of the fact that the instant case is not even one of non-filing of the modvat declaration, but one of belated filing of such declaration, as per the finding recorded by the Tribunal, we are of the view that the amendment notification dated 9.2.1999 and the circular dated 23.2.1999 followed by it, would squarely covers the issue and the order of the Tribunal is in accordance with the amendment notification No.7/99-C.E. (N.T.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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