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2003 (9) TMI 382 - AT - Central Excise
Issues:
1. Denial of Modvat credit due to delay in filing declaration. 2. Precedence of filing declaration to avail Modvat credit. 3. Authority to condone delay in filing declaration. Analysis: Issue 1: Denial of Modvat credit due to delay in filing declaration The appeal was filed against the denial of Modvat credit to the extent of Rs. 40,001.40 in respect of certain inputs by M/s. Avis Machine Pvt. Ltd. The Modvat declaration was furnished after the credit was availed, leading to a 2 days' delay in filing the declaration. The Commissioner (Appeals) overruled the objection raised by the Assistant Collector and allowed the credit, setting aside the order-in-original. The Commissioner's decision was based on the belief that the delay in making the declaration should be condoned. Issue 2: Precedence of filing declaration to avail Modvat credit The Commissioner of Central Excise, Surat-I contended that the filing of the declaration should precede the availment of Modvat credit. He argued that as per the amendment to Central Excise Rules, the manufacturer can make a declaration subsequent to taking credit, but the Assistant Collector must record the reason for condoning the delay. However, the Tribunal found this argument lacking in substance and merit, as the Commissioner (Appeals) had already concluded that the delay deserved to be condoned. Issue 3: Authority to condone delay in filing declaration The Tribunal held that the appeal by the Commissioner of Central Excise lacked merit. It was noted that the Commissioner (Appeals) had the authority to modify the lower authority's order and condone the delay. The Tribunal emphasized that the challenge should have been directed against the action of condonation by the Commissioner (Appeals) if there were facts to counter such action. Since there was no such challenge, the appeal was deemed devoid of merit and rejected. In conclusion, the Tribunal upheld the decision of the Commissioner (Appeals) to allow the Modvat credit despite the delay in filing the declaration. The appeal filed by the Commissioner of Central Excise was rejected as lacking in substance and merit.
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