- (1.) Heard learned counsel for the appellant. This appeal under Section 55 of Central Excise Act, 1944 is challenging the order of the Tribunal dated 17th July, 2003. By this appeal, the Tribunal has rejected the appeal filed by the Revenue against the order passed by the Commissioner (Appeals). The adjudicating authority has disallowed the Modvat credit on two grounds, firstly, that there was non-compliance with the provisions of Rule 57F(20) and secondly, no declaration was also filed within a period of six months. The Commissioner (Appeals) reversed the decision of the adjudicating authority by referring to the earlier judgment of Customs, Excise & Service Tax Appellate Tribunal. Tribunal had dealt both the two reasons on basis of which the Modvat Credit was disallowed by the adjudicating authority in para Nos. 2 and 3 of the judgment. It is useful to refer the para Nos. 2 and 3 of the Tribunal in order which are as follows: (2) The perusal of the impugned order shows that the Commissioner (Appeals) had not accepted the first ground for disallowing the Modvat credit to the respondents on the ground that no such allegation was made in the show cause notice and that the adjudicating authority had travelled beyond the scope of the show cause notice. He has followed the ratio of the law laid down in the case of Vijay Power Generators Ltd., 2001 129 ELT 663, wherein it has been held that any order passed beyond the scope of show Cause Notice, is liable to be struck down on that ground only. (3) Similarly, the second ground has also not been accepted by the Commissioner (Appeals) by following the ratio of the law laid down by the Tribunal in the case of Pratap Steels Ltd.,1996 87 ELT 193and C.D. Engg. Co.,1999 105 ELT 194 , wherein it has been observed that even if the declaration had not been filed within the specified time, the credit could not be declined to the assessee, if otherwise available. The learned JDR has not been able to cite any contrary law for challenging the correctness of the impugned order of the Commissioner (Appeals). In the grounds of appeal, the main ground taken is that, the Department had filed a reference application against the above law and order of the Tribunal and as such could not be followed by the Commissioner (Appeals), but this ground is wholly misconceived and cannot be accepted for reversing the impugned order-in-appeal.
(2.) Learned counsel for the appellant, Sri Shukla, contended that the declaration was necessary to be made by the Unit under Rule 57G. The said issue has been considered by the appellate authority and for repelling the aforesaid contention following observations were made by the appellate authority: The CEGAT in its decision in the case of Sushripad Chemicals,1996 88 ELT 109. Shree Products v. CCE Pune,1999 112 ELT 1057 , CCE, Coimbatore v. T.T. Maps Publication Ltd.,1997 90 ELT 404 & Ballarpur Industries v. CCE, Pune,1999 112 ELT 812 has held that so long as the manufacturing unit remained intact & if the appellant continued to manufacture the very same goods out of the same inputs, the declaration already filed has to be considered adequate for Modvat purposes. Even if the declaration by the new unit is called for, it can only be construed to be a technical requirement & can not construe to be a violation of Rule 57G The fact that a fresh registration was applied & granted does not itself justify the view fresh declaration is needed under Rule 57-G.
(3.) Learned counsel for the appellant has not been able to meet the reasons which was relied by the appellate authority and judgment which were relied. The following question has been framed in the memo: (a) Whether the respondent (manufacturer) could avail Modvat Credit under Rule 57A of the Rules on the basis of declaration filed by a unit earlier existed inn the same premises, without filing a declaration under Rule 57G or without seeking permission under Rule 57F(20) of the Rules from the Commissioner? (b) Whether Modvat credit can be availed by manufacturer without observing/following the provisions of Rule 57G or Rule 57F(20) of the Rules? (c) Whether the scope of the provisions relating to Modvat credit can be relaxed/widened by the Appellate Tribunal or the Commissioner (Appeals) who themselves are statutory authorities credit under the Act inasmuch as the Appellate Tribunal has not given any weight to the provisions and the Rule 57F(20) and Rule 57G of the Rules and also observed that "even if the declaration had not been filed within the specified time the credit could not be declined to the assessee, if otherwise available.;