Full Judgment
2. The appellants are engaged in the manufacture of electrical machinery and equipments falling under Chapter 85 of Central Excise Tariff Act, 1985. It was noticed that on a visit of the officers to the Appellant's factory on 22-12-1986 that the Appellant had not filed declaration in respect of certain inputs for the purpose of Modvat credit under Rule 57A and that they have taken the credit on certain inputs even before obtaining dated acknowledgement from the jurisdictional Assistant Commissioner of Central Excise as required under Rule 57G of the Central Excise Rules. Show cause notice was issued to the Appellants alleging that they were contravening Rules 57A and 57G because they have failed to file declaration at the material time of the inputs received and have wrongly taken Modvat credit of Rs. 4.65 lakhs in the RG 23A Part II of Modvat credit account in contravention of the rule. The matter was adjudicated by the Additional Collector of Central Excise who passed the impugned order confirming the demand and imposing a penalty of Rs. 10,000/-.
3. The learned Consultant, Shri S.D. Gohil for the Appellant submitted the matter now stands settled in their case by an order of the Tribunal in Final Order Nos. 1324-27/93-WRB, dated 19-7-1993 wherein the Tribunal has held that because of the fact admittedly, credit in RG 23A Part II is taken only after filing the declaration and obtaining the acknowledgement there is no bar on receipt of inputs prior to filing declaration.
4. Shri D. Gurnard, the ld. DR submitted that factually the present case is different. He stated that there is a charge in the show cause notice of utilisation of the credit prior to declaration.
5. On a consideration of the rival submission we find that there are materials to indicate that the Appellant have taken the credit in Part I of the Modvat credit on receipt of the input in their factory before filing of the declaration. There is indication in the record that the utilisation of the credit was from June, 1986 onwards by which time they have filed the required declaration under the Rule 57G and taken the credit. In this context the ratio of the Tribunal decision in their own case cited and relied upon by the learned Consultant is to be applied to the present case. Secondly we also bear in mind while dealing with the present case that this is the very beginning of the Modvat scheme relating to the months of March, 1986 to June, 1986 where even the prescribed proforma for filing declaration was formally notified only after June 1986. This will further support in applying the ratio of the decision of the Bench in their own case which was given for a subsequent period. In this view of the matter we set aside the impugned order and allow the appeal.