1. Heard both sides. The appellant has filed the ROM application on the following grounds: - A) while passing the captioned order, this Hon'ble Tribunal has lost sight of the fact that the decision of the larger bench of the Tribunal in the case of Montari Industries v. ( CF, Chandigarh, was not applicable to the facts of the instant case inasmuch as in the instant case appellant availed credit in respect of capital goods on the strength of the GP1's in the month of July 1994, while the Tribunal in the case of Montari Industries was concerned with credit on inputs availed on the strength GP1's after 30.6.94. Applicant submits that the documents on the strength of which credit is to be availed in Rule 57A and Rule 57Q of the Central Excise Rules, 1944 are not para material and consequently the order passed by this Hon'ble Tribunal by relying upon a decision concerning inputs, needs to be modified; b) Applicant submits that Rule 57T(3) of the Central Excise Rules, 1944, which prescribes the documents on the strength of which credit can be availed on capital goods at the relevant point of time provided as under: No Credit of specified duty shall be taken unless such capital goods are received in the factory premises of the manufacturer under cover of invoices or bills of entry or any other documents as may be specified under Rule 57G of the Central Excise Rules, 1944 evidencing payment of duty on such capital goods." Rule 57G(2) of the Central Excise Rules, 1944 with which the larger bench of the Tribunal was concerned provided that: - no credit shall be taken unless the inputs are received in the factory under the cover of an invoice issued under Rule 57A of the Central Excise Rules, 1944, AR-I, bill of entry or any other documents as may be prescribed by the Central Government by notification in the official Gazette in this behalf evidencing payment of duty on such inputs." Applicant respectfully submits that while passing the captioned order, this Hon'ble Tribunal has lost sight of the fact that Rule 57T(3) of the Central Excise Rules, 1944 did not restrict credit to only invoices issued in terms of Rule 57A of the Central Excise Rules, 1944 but provided that credit could be availed on the strength of invoice, bill of entry or any other documents specified under Rule 57G of the Central Excise Rules, 1944. Applicant respectfully submits that Rule 52A of the Central Excise Rules, 1944, provides that: - the expression "invoice" or "Gate Pass" shall mean assessee's own documents such as invoices, challans, advices and all other documents of similar nature generally used for sale of removal of excisable goods and which contain all particulars required under the Act or these Rules." Applicant submits that this Hon'ble Tribunal has overlooked this distinction between Rule 57T(3) and Rule 57G of the Central Excise Rules, 1944, i.e. while under Rule 57T(3) credit could have been availed on any document used for sale or removal of excisable goods (GP1 in the instant case). Credit under Rule 57G could be taken only on an invoice issued under Rule 52A. Appellant submits that this vital distinction had not been noticed by the Hon'ble Tribunal, which is a mistake apparent from record and therefore the captioned order needs to be modified by taking into account the distinction between the two Rules.
c) Applicant submits that the Hon'ble Tribunal did not consider the effect of notification No. 30/94 CE(NT) dated 29/6/1994 whereby the period for availing the credit was extended from 30/6/1994 to 30/12/1994 even though the said Notification was specifically cited before this Hon'ble Tribunal." 2. The ld. Consultant appearing for the appellant submitted that the Larger Bench case of Montari is not applicable to the facts of the present case as the Montari case relates to inputs and whereas the case of the appellant relates to capital goods. The credit was availed by the appellant on 7/7/1994 pursuant to Notification No. 30/94 dated 29/6/1994 which permitted the availment of credit upto 31st of December 1994 on the basis of the GP1.
3. After hearing both sides and perusal of the records and the case laws relied on by the ld. Consultant, we are fully satisfied that there is an error apparent on the face of the record and the order passed by us needs to be recalled. We, accordingly, allow the ROM application and recall Order dated 20/6/2003. The case is fixed for regular hearing on 25/4/2005.