Full Judgment
1. The facts of the case in brief are that the Respondent is engaged in the manufacture of S.O. Dyes falling under Chapter 32 of CETA, 1985 and avails benefit of Modvat credit. Respondent wrongfully availed Modvat credit of Rs. 62,000/- on capital goods without filing declaration under Rule 57T(1) of Central Excise Rules. Show cause notice was issued on 18-4-1995 proposing recovery of the same under Rule 57T and penalty.
After receipt of the reply from Respondents, and hearing the party Assistant Commissioner confirmed the Demand and imposed penalty of Rs. 2,000/- under Rule 173Q(1)(bb) of Central Excise Rules on 22-1-1996.
The party's appeal against the above order was allowed under the impugned order, as covered by the Board's Circular No. 181/15/96-CX and Trade Notice No. 24/9/96, dated 22-3-1996 and 1996 (81) E.L.T. 563 (Tribunal) in the case of Chamundi Steel Re-Rolling Mills. Hence this appeal.
2. Perused the show cause notice dated 18-4-1995, reply dated 9-5-1995, orders of lower authorities, appeal memorandum, Rules 57-I, 57T and 173-Q(1)(bb) of Central Excise Rules, and Departmental clarification based on CBEC letter F. No. 267/86-CX, dated 7-9-1996 under Rule 571(1) and 1998 (102) E.L.T. 455 (Tribunal) in the case of Konark Cylinders & Containers Pvt. Ltd. v. C.C.E., Bhubaneswar. Modvat declaration under Rule 57G(5) of Central Excise Rules (para 6) dated 23-10-1997. Heard both sides.
3. From the grounds in appeal memorandum it is seen that the declaration was filed on 21-11-1994 after the receipt of Machinery i.e.
Kneader/Mixer machine on 31-10-1994, without any reasons for delay and without any request to condone the delay. It was filed on 13-10-1995 after the personal hearing on 10-10-1995 without any explanation. The Board Circular is not complied. Even as per the Respondent declaration was filed under Rule 57Q and not under Rule 57T(1) and whether it complied the requirement of Rule or not is clear. Copy of the declaration filed does not show the date and nature of machinery received as capital goods. The ruling relied on does not deal with declaration under Rule 57T(1). The decision in 1996 (81) E.L.T. 563 (Tribunal) in the case of Chamundi Steel Re-Rolling Mills holds Modvat credit not deniable merely because declaration is not filed. In this case, it is not the case of not filing declaration, as per the contention of both sides. According to respondent it was filed on 27-4-1994 but not under Rule 57T(1), but under Rule 57Q. As per the appellant it was filed on 21-11-1994,20 days after receipt of goods; without any explanation, and condonation application is filed on 13-10-1995 after the personal hearing on 10-10-1995 without any reason.
This clearly shows deliberate contravention of Rule 57T(1). The order-in-original of the Assistant Commissioner goes the clear picture in that regard. As contended by the appellant, respondent; has failed to comply both Rule 57T(1) and Board clarification. So this is a fit case to allow the appeal. Hence the following order is passed.