TaxTMI 
TaxTMI 
2001 (1) TMI 160
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....llant was not legally admissible in-as-much as the appellant did not follow the provisions of Rule 57H of the Central Excise Rules, 1944. It was alleged that they did not follow the procedure as they did not obtain necessary permission of the concerned Asstt. Commissioner. Accordingly, a SCN was issued to the appellant on 2-9-94 asking them to explain as to why Modvat credit of Rs. 3,69,27,513.04 wrongly availed and utilised by them should not be disallowed and recovery from them under Rule 57-I of the Central Excise Rules, 1944 and why penalty should not be imposed under Rule 173Q. The appellants submitted that they were a Public-sector Undertaking and were supplying products to Govt. of India or Public-sector Undertaking; that the appellant purchased large quantities of parts and components as inputs for use in the final product; that they filed a declaration under Sub-rule 1 of Rule 57G before taking credit of duty paid on inputs; that the system of accounting is transparent; that receipt and disposal of inputs are properly accounted for; that sometimes there has been a time lag between the receipt of the inputs in the appellant's factory and accounting in the statutory records.....
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....at the appellants did not take Modvat credit on some of the inputs received before filing the above declaration and that after filing the above declarations the appellants entered the goods (inputs in R.G. 23A Part I & II Registers) that it is only their option that the appellants took the credit and utilised the same for payment of duty on the final product; that the appellants took Modvat credity of duty paid on inputs on and from 15-9-89; that the documents on the basis of which credit was taken like the inputs Gate Passes, copies of R.G. 23A Part I & II registers with the R.T. 12 returns were submitted to the department every month. 6.Ld. Counsel submits that after 4½ years, a SCN was issued to the appellants on 2-9-94 alleging that they had availed Modvat credit on inputs received prior to the filing of declaration. The Show-cause Notice relied on the statutory documents filed by the applicants like the declaration dated 11-9-89, R.G.23A Part I & II Registers, Gate Passes etc. 7.Ld. Counsel submits that the main contention of the Department is that the appellants had taken credit on the inputs received by them prior to filing of declaration under Rule 57G of the Central....
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.... in 1998 (102) E.L.T. 608 held that where the utilisation of credit is after filing the declaration, the credit cannot be denied even though the credit was taken prior to filing the declaration. Ld. Counsel submits that in their case credit has been taken only after filing the declaration. 9.Regarding applicability of Rule 57H to the facts of their case Ld. Counsel submits that Rule 57H is a transitional provision that enables an assessee who opts for Modvat credit for the first time availing exemption etc. or whose raw-material has been notified as an input for the first time to take credit on inputs lying in stock. He submits that this is evident from the circulars issued by the Department itself. Ld. Counsel submits that the appellants have been manufacturing the final product using the duty paid inputs since 1986; that both the final products and inputs have been covered under the Modvat scheme right from 1986. He, therefore, pleads that Rule 57H does not apply to the applicants at all. 10.Ld. Counsel submits that the demand is time barred; that appellant is a Public-sector Undertaking and it can hardly be said that they had any intention to avail Modvat credit in any irr....
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.... of the amount taken as Modvat credit correctly. He submits that the appellant's contention that the dates were taken from their records. He submits that in the instant case the appellants had submitted that since the figures have been taken from their records, therefore, there was no case for holding that the demand is covered by proviso to Section 11A and Rule 57-I. Ld. DR submits that in the records now pointed out by the appellants, there is no indication as to when the declaration was filed and therefore, their contention that the demand is time barred is not correct. Ld. DR submits that declaration is a different document and the records from where the dates have been taken are different records and therefore the allegation that there was a mis-statement is correct in-as-much as there was no indication in the records from where the dates have been taken as to when the declaration was filed. Moreover the facts remain and the admitted position is that the appellants had wrongly stated the date of receipt of the goods in the statutory records and thus the allegation of mis-statement and suppression is proved. He, therefore, prays that the appeal may be rejected. 13.We have he....