9911796707
TMI Blog1999 (6) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... s under dispute. The said dispute was adjudicated by Order-in-Original No. 95/95, dated 19-5-1995 by the Commissioner of Central Excise, Bangalore, and the said order was communicated to the appellants on 24-6-1995. The appellants accepted the order and filed declaration under Rule 57T seeking permission to take Modvat credit on the determination of DG sets as capital goods. They have paid the duty after filing the declaration on 19-5-1995 and thereafter sought permission from the authorities to take Modvat credit. The same has been rejected on the ground that the declaration ought to have been filed prior to the installation of the machinery and there is no provision under Rule 57T to give post-facto permission and for allowing Modvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept to say that the cited seven judgments are not applicable and the Commissioner (Appeals) even has not noted the judgments. He submits that this issue has been decided in the case of Apex Steels P. Ltd. v. C.C.E. as reported in 1995 (80) E.L.T. 368, wherein it is held that pertaining to grant of Modvat credit even if the prescribed procedure could not be followed, the credit should be allowed. Reference was also made to the judgement rendered in the case of Genset India (P) Ltd. v. C.C.E. as reported in 1998 (28) R.L.T. 772, wherein the duty liability of diesel generating set was under dispute and the Tribunal held that in disputed matters, the question of procedural violation does not arise and the Modvat credit has to be granted. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther period as may be allowed by the said Assistant Commissioner for a maximum period of another two months from the date of receipt of the said capital goods, the Assistant Commissioner on sufficient cause being shown may condone the delay in filing the declaration. The question now before me is as to when the appellants are required to file the declaration in this case? The department itself had disputed about the DG sets being capital goods and therefore, the question of its liability to pay duty was under dispute. In such circumstances, the appellants could not file declaration till such time as the dispute pertaining to the item being capital goods and its liability was determined in terms of Rule 57T(1). The said dispute was resolved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital goods, in such cases, proviso 3 to Rule 57T would apply and they are required to file declaration and take credit within further period of two months, on sufficient cause being shown to the Assistant Commissioner to condone the delay in filing the declaration. In this case, the question of filing declaration did not arise at all, as the same was under dispute. Therefore, in such cases, the Tribunal held that where even non-following of prescribed procedure for availability of Modvat credit, the credit should not be denied. The same view was expressed in the case of Genset India (P) Ltd. cited supra. A reference filed on this point was rejected by the Tribunal in the case of Dalmia Industries cited supra. The Commissioner ought to h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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