2001 (9) TMI 420

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....t. Shri Jatin Arora, Advocate, for the Respondent. [Order per : V.K. Agrawal, Member (T)]. - In this appeal, preferred by Revenue, the issue involved is whether the respondents M/s. Omicron Engg. Co. is entitled for certificate under Rule 57E of the Central Excise Rules for the purpose of availing Modvat credit. Shri Ashok Kumar, learned DR, submitted that differential duty of excise was ....

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....o Rule 57E provides that Modvat credit will not be available where additional amount of duty is recoverable from the manufacturer of inputs on account of any short levy or non-levy by reason of fraud, collusion or contravention of any provision of the Act or Rules with intent to evade payment of duty; that as in the present matter the duty was short paid on account of suppression of facts sub-rule....

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....y had not at all suppressed any fact from the department as they were filing classification list as required under Rule 173B since 1995. Finally he relied upon the Supreme Court decision in the case of CCE v. HMM Ltd., 1995 (76) E.L.T. 497 (S.C.). 3. We have considered the submissions of both the sides. Sub-rule (2) of Rule 57E provides that if any additional amount of duty is recovered by....

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....t itself has not alleged any of the ingredients mentioned in sub-rule (3) of Rule 57E in the show cause notice under which the duty was demanded, these cannot be read subsequently for the purpose of denying the certificate under Rule 57E. The learned Advocate for the respondents has rightly relied upon the decision in the case of HMM Ltd. (supra), wherein the Apex Court has held that to attract th....