1990 (7) TMI 226 - AT - Central Excise

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Applicability of Section 11A in cases of wrong availment of Modvat credit.
3. Interpretation of Rule 57-I of the Central Excise Rules.

Condonation of Delay:
The appeal was challenged on the grounds of condonation of delay. The respondent argued that a separate application for condonation of delay was necessary, citing similar cases. However, the appellant explained the delay was due to the sudden death of the Collector of Central Excise, justifying the delay. The tribunal found the reason for delay valid and accepted the condonation of delay, allowing the appeal to proceed.

Applicability of Section 11A:
The appellant contended that the Collector (Appeals) incorrectly applied Section 11A in a case involving the disallowance of Modvat credit, arguing that such disallowance did not fall under the purview of Section 11A. The appellant highlighted that prior to the October 1988 amendment of Rule 57-I, disallowance of Modvat credit did not attract any time bar. However, the tribunal upheld the Collector (Appeals) decision, stating that if the wrongly taken credit had been utilized, it would fall under Section 11A, as it would result in non-payment or short payment of duty.

Interpretation of Rule 57-I:
The tribunal analyzed Rule 57-I of the Central Excise Rules, emphasizing that the time limit under Section 11A would apply even in cases of wrong availment of Modvat credit. It was clarified that if the wrongly taken credit had been utilized, reversing it would lead to treating cleared output as not duty paid, falling under the recovery provisions of Section 11A. Therefore, the tribunal upheld the Collector (Appeals) decision, dismissing the departmental appeal and granting relief to the respondent.

Conclusion:
The tribunal concluded that the time limit would apply in cases of wrong availment of Modvat credit, especially if the credit had been utilized. The decision of the Collector (Appeals) was upheld, and the departmental appeal was dismissed. The respondent was entitled to consequential benefits as per the appellate decision. The cross objection by the respondents was also disposed of in line with the tribunal's order.