2013 (10) TMI 142 - HC - Central Excise

Court affirms disallowance of Modvat credit, finding no violation alleged, delay condonable. Upholds lower authorities' decisions.

The Court upheld the Commissioner (Appeals)'s decision to disallow Modvat credit, finding that the show cause notice did not allege a violation of Rule ... MODVAT credit under Rule 57A - Whether Modvat credit under Rule 57A can be availed on the basis of declaration filed by unit earlier existed in the premises without filing the declaration under Rule 57G or without seeking permission under Rule 57F(20) of the Rules – Held that:- In so far as permission under Rule 57F(20) was concerned, finding had been recorded that said allegation was not made in the show cause notice, nor the assessee was required to seek permission under Rule 57F(20) when an allegation was not made in the notice - The adjudicating authority committed error in relying on the Provisions of 57F(20) - The findings recorded by the Tribunal that show cause notice did not contain any allegation regarding violation of Rule 57F(20) had not been challenged. - No such substantial question of law arises for consideration. In so far as filing of declaration under Rule 57G of Central Excise Rules, 1944 was concerned the declaration was submitted by the assessee with delay - The declaration filed with delay was rejected without any valid reason - Rule 57G(9) empowers the authority to condone the delay in filing of such declaration and allow the manufacturer to take credit of the duty already paid on the inputs - Declaration of the assessee was claimed to have been filed well within a period of six months from the receipt of input in the factory - the Tribunal had rightly dismissed the appeal of the revenue confirming the order of the Commissioner (Appeals) - The appeal was concluded by findings of the facts and no substantial question of law arises for consideration. Issues:Challenge to Tribunal's order rejecting Modvat credit appeal based on non-compliance with Rule 57F(20) and failure to file declaration within six months.Detailed Analysis:1. The Tribunal rejected the appeal filed by the Revenue against the order of the Commissioner (Appeals) disallowing Modvat credit on two grounds. The Commissioner (Appeals) reversed the decision of the adjudicating authority by referring to earlier judgments. The Tribunal analyzed both grounds for disallowing Modvat credit and cited relevant case laws to support its decision.2. The first ground for disallowing Modvat credit was rejected by the Commissioner (Appeals) as it was beyond the scope of the show cause notice. Citing the case of Vijay Power Generators Ltd., it was held that any order passed beyond the scope of the notice is invalid. Similarly, the second ground was also dismissed based on precedents like Pratap Steels Ltd. and C.D. Engg. Co., stating that even if the declaration was not filed within the specified time, credit could not be denied if otherwise available.3. The issue of the necessity of declaration under Rule 57G was raised by the appellant's counsel. The appellate authority referred to various judgments, including Sushripad Chemicals and others, to establish that as long as the manufacturing unit remained intact and the same goods were manufactured from the same inputs, the existing declaration was sufficient for Modvat purposes. The necessity for a fresh declaration was considered a technical requirement.4. The appellant's counsel failed to counter the reasons and judgments relied upon by the appellate authority. The questions framed for consideration included whether Modvat credit could be availed without following Rule 57G or Rule 57F(20) and whether the provisions could be relaxed by the Tribunal or Commissioner (Appeals).5. The Court addressed the first question regarding availing Modvat credit based on a previous unit's declaration without filing under Rule 57G or seeking permission under Rule 57F(20). It was found that the show cause notice did not allege a violation of Rule 57F(20), and the delay in filing the declaration under Rule 57G was unjustly rejected without valid reason. The authority was empowered to condone such delays under Rule 57G(9).6. The Tribunal's decision to dismiss the appeal and uphold the Commissioner (Appeals)'s order was deemed appropriate as it was based on factual findings, and no substantial legal questions were raised. The appeal was consequently dismissed, affirming the lower authorities' decisions.This detailed analysis outlines the key legal issues, arguments presented, relevant case laws cited, and the ultimate decision rendered by the Court in the judgment.