INDO TECH ELECTRIC CO Vs. COLLECTOR OF C EX

JUDGEMENT

(1.) THIS appeal is directed against the order of the Collector of Central Excise (Appeals), Madras dated 28-11-1988 setting aside the order of the Assistant Collector of Central Excise, Madras VII Division dated 9-6-1988 but observing in the said order as under:

(2.) Shri K. Narayanan, the learned counsel for the appellant submitted that the appellant received Copper Winding Wires as an input for the manufacture of transformers by availing of MODVAT credit. Initially the supplier of the input in question has not paid duty on that and subsequently the supplier paid the duty in regard to the input in question and consequently the appellant took credit for the duty suffered by the input at the hands of the appellant's suppliers. The appellant took credit for a sum of Rs. 1,41,516.46 on 12th June, 1986 under due intimation to the Central Excise Department and with the permission of the Superintendent of Central Excise concerned. This credit relates to the period March and April 1986. The Supdt. of Central Excise, Madras VII-C Range issued a demand-cum-show cause notice dated 13-1-1988 calling upon the appellant to reverse the credit and the notice further stated that if the appellants were aggrieved against the demand, the issue could be agitated before the Asst. Collector of Central Excise. The appellant questioned the propriety of the demand in the show cause notice of the Supdt. before the Assistant Collector of Central Excise, who after hearing the appellant, passed the original order on 9-6-1988 confirming the demand in terms of the show cause notice issued by the Supdt. of Central Excise. As against this order of the Asst. Collector of Central Excise, the appellant preferred an appeal before the Collector of Central Excise (Appeals), Madras who under the impugned order set aside the order of the Asst. Collector with the following observations:

(3.) SHRI K.M. Vadivelu, the learned D.R. urged that the stand of the Department is that the Supdt. of Central Excise is competent to issue a show cause notice and also a demand for disallowing Modvat credit wrongly availed under Rule 57I(1) of the Central Excise Rules, 1944.