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TMI Blog1994 (3) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in terms of Rule 57-O for availing the credit in terms of Notification 27/87 aforesaid and this Notification was subsequently withdrawn by Notification 39/[89], dated 25th August, 1989 and instead Notification 45/89, dated 11-10-1989 came to be issued. Proceedings were instituted against the appellants by issue of Show Cause Notice dated 26-2-1990 on the ground that the credit in a sum of Rs. 7,19,028.50 taken by the appellants under the aforesaid Money Credit Scheme was not permissible for the period 11-10-1989 to 27-11-1989 as the appellants had not filed the necessary declaration with the Assistant Collector of Central Excise in terms of the said Notification for the period in question indicating inter alia the description of the input and the finished product and obtained the dated acknowledgement for the same. The proceedings culminated in an order of adjudication at the hands of the learned Collector of Central Excise, Erode dated `Nil directing the appellants to expunge the credit availed between 11-10-1989 to 27-11-1989, which order was confirmed by the Collector of Central Excise (Appeals) under the impugned order cited supra. Mrs. Komala Chowdhary, the learned Consul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us. The short question that falls for our consideration is whether for the period in question, under the Money Credit Scheme referred to supra, the appellants would become disentitled to avail the credit on the only ground of non-filing of a fresh declaration after the new Notification came into force. It would be seen that under the Money Credit Scheme the appellants have been enjoying the credit in terms of Notification 27/87. It is also admitted by the Department that the appellants had initially filed a declaration in terms of the said Notification by clearly indicating therein the nature and use of the inputs and also the final product. The rescinding notification is similarly worded as the earlier Notification and the purpose of the Notification is to enable the eligible manufacturers to avail the Money Credit Scheme as per Rule 57K. Even if the appellants had not filed a fresh declaration after the introduction of the new Notification, inasmuch as the scheme was a continuing one and the wording of the Notification being similar to the earlier notification and the input and the output remaining the same, the technical fact of non-filing of a fresh declaration after the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal is allowed. Sd/- (S. Kalyanam) Member (J) 5. [Contra per : V.P. Gulati, Member (T)]. - I have given a careful thought to the order recorded by my learned Brother. I have not been able to persuade myself to agree with him that the appellants are entitled to the benefit of the Money Credit Scheme available in terms of Notification No. 45/89, dated 11-10-1989 in the absence of any declaration filed in terms of this Notification. 6. The short point that falls for consideration is whether a declaration which was filed by the appellants in the context of Notification 27/87, which was rescinded by Notification 39/[89], dated 25-8-1989 could be taken to be valid for the purpose of availing the benefit of the concession under the Notification 45/89, dated 11-10-1989. It is seen that the appellants had taken the Money Credit in a sum of Rs. 7,19,028.50 during the period 11-10-1987 to 27-11-1989 without filing the declaration as required in terms of Notification 45/89, dated 11-10-1989 read with Rule 57-O of Central Excise Rules. The plea of the appellants is that the declaration earlier filed for availing the benefit under Notification 27/87, which came to be rescinded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer of the final product shall maintain an account in Form RG 23B, Part I and II. (4) A manufacturer of the final products shall submit a monthly return to the Superintendent of Central Excise indicating the particulars of the inputs used during the month and the amount of credit taken, along with extracts of Parts I and II of RG 23B. (5) A manufacturer of final products shall, on demand by the proper officer, submit the invoices under which the inputs have been received." It has been further argued by the appellants that the Department has not disputed the identity of the inputs used and the appellants eligibility to the Money Credit Scheme in terms of Notification 45/89. It is observed that the procedure prescribed under Rule 57-O for availing of the Money credit is similar to the one prescribed under Rule 57G for availing of the MODVAT credit so far as the filing of the declaration and availing of the MODVAT Credit is concerned. It is a condition precedent in both the cases that the credit can be taken only after the declaration has been filed and acknowledgement in respect of the same is obtained from the jurisdictional Assistant Collector. In the context of MODVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to comply with all the requirements of law for the purpose of availing of the benefit i.e., complying with the requirements as set out under Rule 57-O. The appellants admittedly did not file the declaration before they started taking credit in terms of Notification 45/89. As mentioned earlier, the declaration filed by the appellants in the context of Notification 27/87 could not be taken note of legally. As held by this Tribunal in the case referred to supra, filing of a declaration is a condition precedent before the benefit of the Notification issued under Rule 57K could be taken in terms of Notification 45/89. It may be mentioned that the purpose of filing a declaration is to make the departmental authorities aware of the appellants intention of availing of the concession/and to enable them to verify the appellants eligibility to the benefit of the Notification in question at the relevant time and ascertain any information from them which the Assistant Collector may require before acknowledging the declaration filed and thereafter to carry out spot checks if felt necessary regarding the use of the inputs in terms of the Notification from time to time. Unless the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to avail of the concession and to enable the authorities to verify the assessee s eligibility for the benefit of the Notification in question and ascertain any information from them which the Assistant Collector may require before acknowledging the declaration filed and thereafter to carry out spot checks, if felt necessary, regarding the use of the inputs in terms of the Notification from time to time, and, therefore, the lower appellate authority s order is maintainable in law and the appeal has to be dismissed, as held by Member (Technical). Sd- (S. Kalyanam) Member (J) Sd/ (V.P. Gulati) Member (T) 7. [Order per : T.P. Nambiar, Member (J)]. - The matter is referred to me for resolving the points of difference between learned Member (J), (Vice President) and learned Member (Technical). The points of difference referred to me are to the effect that : Whether in the facts and circumstances of the case the non-filing of a fresh declaration in terms of Notification 45/89, dated 11-10-1989 for availing of the money credit for the period 11-10-1989 to 27-11-1989 has to be construed as a technical breach inasmuch as a declaration in terms of Notification 27/87, date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter it was submitted that the decision relied upon by the learned Member (Technical) in the case of Tata Oil Mills Co. v. Collector reported in 1990 (48) E.L.T. 279 is not applicable to the facts of this case. Shri Vijayaraghavan, the learned Consultant brought to my notice clarification issued by the Central Board of Excise Customs vide their Circular No. 14/93-CX , dated 8-11-1993. He also contended that in the light of the above clarification issued by the Board, same procedure is being followed in other areas. In that view of the matter it was contended that the view taken by learned Member (J) (Vice President) may be agreed upon. 10. Shri Murugandi, the learned DR perused the departmental clarification issued by the Central Board of Excise and Customs and stated that the matter may be decided in accordance with law. 11. I have considered the submissions made by both the sides. Learned Member (T) has held that in the present case earlier Notification 27/87 issued under Rule 57 came to be rescinded from 5-8-1989 and later another Notification 45/89, dated 11-10-1989 was issued and therefore a fresh declaration is necessary as set out under Rule 57-O. Since the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the same and also the finished product is also the same. It will not be necessary to file a fresh declaration in the such cases. The decision relied upon by learned Member (T) is not applicable to the facts of this case. In that particular decision, the facts were different as there was no declaration at all filed and the issue in that case was when there was no declaration at all as contemplated under Rule 57-O, the Tribunal held that, the appellant in that case was not entitled to the benefit of the Notification. In this case the appellants had made a declaration under the earlier Notification 27/87, dated 1-3-1987 and after the issue of another Notification 45/89, the appellants did not file a fresh declaration. In the facts and circumstances, it is now seen that there was no variation either in the inputs or in the final product and therefore, the appellants cannot be denied the benefit of Notification as the declaration filed by them in accordance with the first Notification is valid and it cannot be said that there was any violations of the rule and non-filing of a second declaration can be termed as a breach too technical in nature since there was no variation in the inpu ..... 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