BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal under section 35-G of the Central Excise Act, 1944, is against the order of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, dated 25. 05. 2004. The substantial question which was framed at the time of admission which arose for consideration reads as under:- " Whether in the facts and circumstances of the case, keeping in view the provisions of Rule 47-T (3) of the Central Excise Rules, 1944, the Tribunal was justified in allowing the respondent to avail the modvat credit on ground of delayed filing of declaration ?" Briefly stated the facts necessary for the present purpose which led to this appeal are that the respondent assessee has availed MODVAT credit of Duty paid on capital goods received in factory as per Rule 57-Q of Central Excise Rules, 1944. However, declaration required to be filed under Section 57-T (1) was filed after 3 months of the receipt of the capital goods in factory and availing MODVAT credit of duty. It is stated that the goods were received in factory on 31st March 2000 vide invoice dated 16. 3. 2000. However, declarations were made on 12th of July 2000 by which period of filing declaration had expired. The period within which declaration are to be filed is provided under Rule 57t (1) to 57t (3), which is part of one scheme. Rule 57-T (1) envisages that every manufacturer intending to take credit of the duty paid on the capital goods under Rule 57-Q shall, before receipt of the capital goods, file a declaration with the Assistant Commissioner of Central Excise having jurisdiction over his factory, indicating therein the particulars of the capital goods, description of the final products manufactured in his factory and such further information as the Assistant Commissioner may require, and shall obtain a dated acknowledgment of the said declaration. Sub Rule (3), though, numbered independently indicates that it is operative as proviso to Sub Rule (1) and Sub Rule (2) which says that in case where a manufacturer was not in a position to make the declaration under sub-rule (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 of the said capital goods in the factory, the Assistant Commissioner of Central Excise may, on sufficient cause being shown to him, allow the filing of the declaration. The manufacturer shall be allowed to take the credit of specified duty only if the capital goods are received in the factory premises of the manufacturer under the cover of a document specified under Rule 57g evidencing the payment of duty on such capital goods.
(3.) IF the matter would have rested as that, obviously, respondent assessee was not entitled to avail MODVAT credit in case requisite declarations were made beyond 3 months from receipt of capital goods in factory. However, vide Notification No. 7/99 CE (NT) dated 9. 2. 99 sub rule (3) was inserted as under:- " 57t (13) Credit under sub-rule (6) shall not be denied on the ground that- (i) any of the documents specified under sub-rule (3) of Rule 57g does not contain all the particulars required to be contained therein under these rules, if such document contains details of payment of duty, description of the capital goods, assessable value, name and address of the factory or warehouse; (ii) the declaration filed under Sub-Rule (1) does not contain all the details required to be contained therein or the manufacturer fails to comply with any other requirements under sub-rule (1): Provided that the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise having jurisdiction over the factory of the manufacturer intending to take credit is satisfied that the duty due on the capital goods have been paid and such capital goods have actually been used or are to be used in the manufacture of final products, and such Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise shall record the reasons for not denying the credit so in each case. " It is on the basis of aforesaid rule, it is contended by the learned counsel for the assessee respondent, as was contended before the Tribunal, that as a result of this Sub Rule rigors character of procedural requirement of filing of declaration within time or filing declaration with full particulars have been softened and it is indicated as a matter of legislative policy that for merely procedural lapses the benefit of MODVAT credit, to which manufacturer is otherwise entitled on substantive premise, is not to be denied. In view thereof it was submitted before the Tribunal by the assessee that since with the invoice submitted by the assessee full requisite particulars were furnished, and there is no dispute that Duty Paid capital goods were in fact received in the factory and, used in manufacture of goods, substantive requirement of availing benefit of MODVAT credit on capital goods used in manufacturing of end product as per Section 57-Q have been fulfilled, therefore, the Tribunal has rightly allowed the appeal of the assessee to retain the benefit of MODVAT credit availed by it on receipt of such duty paid capital goods in factory, notwithstanding that declarations were filed belatedly. It was pointed out that limitation for filing declaration is part of procedural law and not substantive content of requirements. Learned counsel for the appellant Revenue has relied on Sub- rule (3) of Rule 57-T to contend that declarations filed after 3 months of receipt of capital goods in factory premises cannot be of any effect, therefore, show cause notice was rightly issued by the Assessing Authority for withdrawing MODVAT credit availed by the respondent and subsequently ordered recalling the MODVAT credit in respect of such capital goods was justified. ;