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TMI Blog1994 (11) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... d their appeal partly by setting aside "the demand for the period beyond six months from the date of credit". This latter finding has, in turn, been assailed before us by the Collector of Central Excise, Indore. That appeal is registered as E/2429/90-NRB. As both the appeals arise from the same order-in-appeal and as both the appeals were argued together before us by the respective counsels, we are passing this combined order. A miscellaneous application was filed by Brite before the Honourable President of the Tribunal for constitution of Larger Bench for deciding the question of jurisdiction as they were aggrieved with the Miscellaneous Order No. Misc./261/91-NRB, dated 26-7-1991 holding that the notice issued under Rule 57-I of the Central Excise Rules after its amendment on 6-10-1988 was within the powers of the Superintendent and had been rightly adjudicated by the Assistant Collector. 2. The matter had been considered by the President of the Tribunal. Initially these two appeals had been included in a list of cases referred to the Larger Bench. That list was actually of cases on the Customs side on the jurisdiction of Benches to deal with appeals relating to inputs unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Collector. He submitted that unlike the cases cited by the learned counsel where some declaration giving broad descriptions had been filed and the variation in Tariff classification was noticed which was held to be not fatal to the availment of Modvat credit, the present case is one where the final products in question had not been mentioned by them at all in the declarations. He relied upon the Tribunal decision in Collector of Central Excise, Bangalore v. Brindavan Alloys Ltd., reported in 1994 (69) E.L.T. 764 wherein it was held that declaration under Rule 57G in respect of Graphite Nipples having not been filed, Modvat credit was not available. As regards the contention raised in the appeal about the applicability of Section 11A to the exclusion of Rule 57-I and the consequent lack of jurisdiction of the Superintendent for issue of the notice, Shri Gupta submitted that Rule 57-I is a self-contained and specific provision for regulating cases of Modvat credit wrongly availed. Under the said provision, the notice is to be issued by the proper officer. Superintendent of Central Excise is the proper officer and unlike the proviso to sub-section (1) of Section 11A, Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes out a case for such reference to the Larger Bench to resolve the issue; such a situation has not arisen in the present case. We accordingly proceed to deal with the appeal in all its aspects. 9. The preliminary point about lack of jurisdiction on the part of the Superintendent to issue a notice for the longer period beyond six months has been disposed of in terms of the miscellaneous order dated 26-7-1991. We agree with the views expressed therein. The notice in the present case has been issued after the amendment of Rule 57-I which specifically provides for the issue of notice in cases of wrong taking of modvat credit and wrong utilisation of modvat credit. The notice may be issued by the proper officer. The notice in the present case has been issued by the Superintendent in terms of this Rule and Section 11A, had not been referred to. It is the contention of the appellants that whether Section 11A has been referred to or not in the notice that Section will come into play as substantive law will have precedence over the subordinate legislation. Accordingly, it will be the Collector who will be the officer for issue of notice for the longer period. This contention is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he classification claimed by them was changed by the department. Pending the finalisation and final approval of the classification list, they could not have declared the final products and their classification in the modvat declaration. We do not accept the argument that because of this, their non-inclusion of the final products should not be held out against them for grant of Modvat benefit. We do not agree. Even if there was any doubt about the classification of their final product they could have furnished the description of the final product and the classification claimed by them in the declaration. If the Department changed the classification that is a matter which would not have affected their Modvat eligibility unless the changed classification took the products outside the purview of the Modvat Notification. The plea raised that they did not mention these final products in their declaration because of the doubt about the correct classification of the said goods is rejected. 10. The declaration filed under Rule 57G by the appellants specified their final products as parts of Two Wheeler Motor Vehicles, parts of Four Wheeler Motor Vehicles and parts of Radio, T.V., Two- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement, collusion or suppression of facts. In the present case while the final products in question had not been declared and, on that score, the Modvat credit has been held to be not admissible, it is certainly not a case involving the factors mentioned above to attract the extended period. The non-declaration of these final products in their declaration under Rule 57G was in the knowledge of the Department. When duty thereon was paid through debit to the RG 23A Part II account and the same was disclosed by Brite in their R.T. 12 return with the enclosed RG 23A Part II statements, the department should have noticed the wrong and inadmissible utilisation of credit. It was not a case where the notice could be issued for the longer period. The other point urged in the appeal by the Collector is that the wrong availment of credit pertained to the period prior to the amendment of Rule 57-I and hence the provision that would be applicable would be unamended Rule 57-I which contained no time-limit for issue of the demand. We do not agree. The provision that would govern a notice is the one in force at the time of its issue. That is as per the Larger Bench decision in Atma Steel (P) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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