Judgment:
1. The appeal is directed against the order-in-appeal passed by the Commissioner (Appeals), Ghaziabad upholding the Order-in-Original of the Assistant Commissioner, Division-I, Noida rejecting there refund claim for a sum of Rs. 1,74,001/-. This amount had been claimed by the appellant in respect of countervailing duty (additional duty of Customs) paid on certain component parts imported by them which had been used in the manufacture of coloured T.V. sets exported by them.
They had originally claimed drawback of duty on such exports but what was sanctioned to them as drawback was only on account of the Customs duty paid on the imported goods and the Central Excise duty paid on the indigenously procured items. Their contention before the authorities below was that the element of countervailing duty paid on the imported goods had not been included in the drawback rates. They had taken up the matter with the Ministry of Finance and got a reply from them that in fixing the drawback rates the element of countervailing duty paid on the imported components had not been taken into consideration. It was then that they approached the jurisdictional Central Excise officer for claiming refund of countervailing duty paid on the imported goods. In this connection, he referred to a Tribunal order passed in their own case in Appeal No. 1606/96-NB (Final Order No. A-739/97-NB, dated 27-8-1997). It was explained by the learned Counsel that this appeal related to a similar import by them of parts required for the manufacture of VCR which had been exported by them. There also the drawback amount did not take into account the countervailing duty component and they had to approach the Central Excise department for suitable relief by way of Modvat credit that would have been available to them which on the export of the final products would be either admissible to them as refund or for utilisation as credit for payment of duty on their goods cleared for home consumption. This appeal was decided by the Bench remanding the matter to the Commissioner (Appeals) for decision on merits.
2. Resisting the arguments of the learned Counsel, Shri A.M. Tilak, learned DR pointed out that the earlier decision of the Tribunal was taken in the facts and circumstances of that case since the impugned order therein had been passed ex parte and the matter was remanded for de novo decision after granting personal hearing. As far as the present case is concerned, Shri Tilak pointed out that appellant had not maintained any record and had not filed the declaration under Rule 57G which is a basic requirement under the Modvat Scheme. He supported the impugned order.
3. I have taken note of the submissions of both the sides. I have perused the record. The facts of the case as have come out in the order of the authorities below and which were referred to during the hearing of the present appeal indicate that the appellant has turned to relief available under Rule 57F(4) as currently in force after having lost the case for benefit of drawback on exported goods manufactured with imported components. It is the contention that the drawback amount fixed by the Ministry of Finance had not taken into account the countervailing duty portion relating to the imported components. Since they were not initially contemplating any claim of Modvat on account of such countervailing duty but had pinned their hopes on drawback they could not have filed the declaration and complied with the other requirements under the Modvat regime. The need for seeking benefit as admissible under the Modvat Scheme arose only when they failed on the drawback front. Such a situation would warrant a sympathetic treatment as had been held by the Supreme Court in Formica India Division v.C.C.E. reported in 1995 (77) E.L.T. 511 (S.C.). In that case the need for claiming Modvat arose when the final product which had been cleared without payment of duty was held to be liable to duty subsequently. In such a situation the failure to follow the requirement of drawback scheme at the initial stage was not held to be a disability. Such a treatment would be merited in the present case also provided the appellant is in a position to satisfy the authorities about the payment of countervailing duty in respect of the components in question and of their having received the same in their factory and utilising the same in the manufacture of final product which was exported. The Order-in-Original passed in their case does not disclose the full facts particularly the contention that relates to a similar import of component parts of other products manufactured by them for export purposes and grant of lesser amount of drawback which they did not take into account the countervailing duty aspect but it is submitted by the learned counsel at the Bar that the facts were similar to the present case and it related to component parts of other electronics of products which were exported. I find that though that appeal was allowed by remanding the matter to the Commissioner (Appeals) for de novo decision after hearing them as the impugned order had been passed ex parte, the Bench also took note of the submissions made about the entitlement to refund under Rule 57F(4) read with Notification 85/87 and certain Tribunal decisions including the one in Chamundi Steel Re-rolling Mills v. C.C.E. reported in 1996 (81) E.L.T. 561. That was also a case where the question of availment of Modvat benefit arose at a subsequent stage and the failure to file declaration under Rule 57G at the initial stage was held to be condonable. Following the aforesaid decisions I am inclined to allow the present appeal by remanding the matter to the Assistant Commissioner for de novo decision on merits. The non-filing of the declaration under Rule 57G at the initial stage is condoned and the appellant should file necessary evidence before the said authority to establish their case for eligibility of Modvat credit as admissible under Rule 57F(4) as presently in force.