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TMI Blog1989 (12) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... s. They availed of the MODVAT credit from Feb. 87 to Sep. 87. Since proper declaration was not filed in respect of the goods, namely aluminium tubes, show cause notice was issued on 2-2-1988 for recovering the credit taken under the MODVAT scheme during the aforesaid period. In the adjudication proceedings, initiated by the Assistant Collector, demand for Rs. 63,642.48 was confirmed under the provisions of Rule 57-1 (1) of the Central Excise Rules. The respondents went in appeal before the Collector (Appeals). The Collector (Appeals) without going into the other merits of the appeal, allowed the appeal of the respondents on the ground that the demand is barred by time and hit by limitation laid down under Section 11A of the Act and the Supd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit. 4. Shri D.D. Gwalani, the learned advocate for the respondents, admits that no proper declaration was filed in respect of Aluminium tubes. All the same it is not the contention of the department that aluminium tubes are not the inputs entitled to credit under the MODVAT scheme in the case of the respondents. The aluminium tubes are notified as eligible for MODVAT. The mere technicality of not filing the declaration should not be viewed seriously for denying the credit. In this context he relied on the decision reported in 1988 (36) E.L.T. 651, where the Tribunal has held that the formality of filing the declaration required under Notification No. 201/79 has been condoned by the Tribunal. He also cited the decision of this Bench in S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11A comes into play wherever there is a short-levy, non-levy or erroneous refund. In this case, the MODVAT credit demanded by the assessee is in the nature of credit of the duty paid on inputs taken in the prescribed accounts, which can be utilised for payment of duty towards the final product. When the credit has been taken wrongly or it is in excess of the eligibility, it is a case of erroneous credit, which can be recovered by a demand. Such a demand cannot go beyond the purview of the statutory provisions of Section 11A of the Central Excises Salt Act, 1944. Even if Rule 57(1) is sought to be invoked, it is to be read with the provisions of Section 11A, which is the statutory provision for recovery of any duty - either short-levy or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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