1998 (7) TMI 199 - AT - Central Excise

Summary

Issues:
1. Disallowance of Modvat credit on capital goods by Assistant Commissioner.
2. Time bar on filing declaration under Rule 57T(1).
3. Interpretation of the Second Proviso clause of Rule 57T(1).
4. Effect of Circular No. 88/88/94-CX issued by the Board.
5. Date of factory existence for availing Modvat credit.
6. Prospective effect of the Board's Circular on filing declarations.

Analysis:

1. The appeal was against the disallowance of Modvat credit on capital goods by the Assistant Commissioner. The Commissioner (Appeals) permitted the assessee to avail the credit, noting the requirement of a declaration under Rule 57T(1) for taking credit of duty paid on capital goods.

2. The Assistant Commissioner disallowed the credit, citing that the declaration filed was time-barred. However, the Commissioner held that the declaration filed within the stipulated period after the factory's registration was not delayed, allowing the Modvat credit.

3. The Second Proviso clause of Rule 57T(1) allows for condonation of delay in filing the declaration if done within a specified period from the receipt of capital goods in the factory. The Commissioner interpreted this clause to reckon the date of receipt from the factory's Central Excise registration.

4. The Board's Circular clarified the requirement of filing declarations under Rule 57Q, irrespective of factory registration, with prospective effect. The Commissioner's decision aligned with this clarification, enabling the department to receive declarations from unregistered factories.

5. The judgment emphasized that the factory's existence, for the purpose of availing Modvat credit, commenced upon obtaining registration under the Central Excise Law. The filing of the declaration post-registration was considered timely, as the factory was not operational before registration.

6. The Circular's prospective effect was crucial in determining the timeliness of the declaration filing. The party's explanation that declarations were filed promptly upon obtaining registration supported the upheld decision, rejecting the revenue's argument based on the machinery's entry date.

In conclusion, the appellate tribunal upheld the Commissioner's decision, emphasizing the factory's existence post-registration for availing Modvat credit and the prospective effect of the Board's Circular on declaration filings.