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TMI Blog1992 (7) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 57-1 of the Central Excise Rules, 1944 can be restricted to six months when the respondent availed Modvat credit without Filing declaration as required under Rule 57G ibid which has clearly been mentioned in the show cause notice. (ii) Whether irregularly availed Modvat credit cannot be recovered by invoking proviso to Rule 57-1(1) ibid when at the material time the respondent availed Modvat credit there was element of suppression of facts irrespective of the facts that the above facts were disclosed at later stage. 2. The Tribunal Order from which the above mentioned points are claimed to have arisen partially allowed the appeal filed by the same Collector against the order- in-appeal passed by the Collector of Central Excise (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice that they availed Modvat credit without filing declaration under Rule 57G is enough to bring the case within the ambit of proviso to Rule 57-1. It is urged that even if the words, fraud, suppression etc. are not directly mentioned in the show cause notice, it would be enough if the statement of allegation brings out the charge of fraud, suppression etc. e.g., non-filing of declaration or classification list. Reliance has been placed on the Tribunal decisions in 1986 (25) E.L.T. 727 and 1987 (27) E.L.T. 269 for this proposition. 5. Shri A. Choudhury, learned Departmental Representative argued the case in support of the Reference Application. Shri P.R. Biswas, learned Consultant opposed the application. He urged that the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances which amount to such a conduct on the part of the persons concerned would not justify a demand beyond six months. Tribunal's decision in Mac Laboratories Ltd. v. Collector of Central Excise, Bombay reported in 1985 (19) E.L.T. 307 refers in this connection. The cases cited in the Reference Application do not support the applicant Collector's case. Nothing has been canvassed which would dislodge my earlier finding that the omission of the respondents to include the input in question in their Rule 57G declaration is only their failure which does not amount to suppression. The non-inclusion of the said inputs in the declaration is a fact which was apparent on the face of the declaration. When in spite of such non-inclusion in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 57G declaration is not a case of suppression. The special treatment provided against suppression by way of longer time limit for the issue of demand will arise, if, by such suppression, the department was prevented from getting to know the facts for issuing a notice in time which they could do only on coming to know later about the suppression. It is nobody's case that the respondents got any benefit by such non-inclusion which they could not have got if they had declared the full details. In fact, by non-inclusion of the inputs in question they did not stand to gain anything but on the contrary, made their position vulnerable. But this vulnerability can be only to the extent of a demand for the normal period of six months. If every such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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