1998 (5) TMI 176

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....urisdictional Central Excise Authorities on 25-3-1986 for availing the Modvat credit of duty paid on inputs. The said declaration was acknowledged by the office of the Assistant Commissioner on 25-4-1986. However the appellant did not avail any Modvat, but opted out of the same no under due intimation to the department on 12-4-1986, and started availing the full exemption benefit under Notification No. 175/86-C.E., 1-3-1986. Subsequently the appellant started availing the Modvat credit of duty w.e.f. 14-1-1987. No new declaration was filed by them at that point of time. Fresh declaration was filed only on 16-2-1987. The department entertained the view that since there was no declaration under the provisions of Rule 57G during the period 14-....

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....of the Tribunal in the case of Brakes India Ltd. v. Collector of Central Excise, Madras, reported in 1997 (96) E.L.T. 434 (Tribunal) has held that even under the unamended Rule 57-I, normal period of limitation shall be six months and whether there is suppression, wishful mis-statement or collusion etc. a period of 5 years would be available to the department. In these circumstances he submits that the order passed by the Assistant Commissioner be restored. 4. Shri S.N. Ghosh, ld. JDR appearing for the Revenue submits that admittedly there was no declaration on 14-1-1987 and as such the Modvat availed by the appellant during the period 14-1-1987 to 15-2-1987 was without having filed any declaration under the provisions of Rule 57G w....

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....ng that a declaration was originally filed by the appellants on 25-3-1986. As the position regarding opting out of the Modvat credit during the relevant period was not very clear and the department was also of the opinion that it was not permissible to opt out of the Modvat once opted for the same, the subsequent letter of intimation dated 12-4-1986 by the appellant should not be considered as having withdrawn their declarations of 25-3-1986. Another factor which has weighed with the adjudicating authority is that the said letter of 25-3-1986 was acknowledged by the department on 25-4-1986. That is after the appellants have opted out of the Modvat scheme. It is the date of acknowledgement of the declaration which is the relevant date for th....