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TMI Blog2014 (8) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... rious kinds of bearings. The only issue in this case is that the appellant had contravened the provisions of the newly introduced Rules 57T(1) and 57T(2) as the declaration held by appellants were not in terms of a purported Trade Notice issued by the respondent. The period of dispute is from October 1994 to January 1995. Further, some of the credit has been denied on the ground that the items are not capital goods at all. 3. As per the findings of the Commissioner of Central Excise; Appellant had not filed proper declaration under Rule 57T(1) nor proper intimation was sent as per Rule 57T(2), and some of the items declared were like material handling equipment, testing equipment, measuring equipment, which by themselves do not bring about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me with technical reasons of disallowing MODVAT credit on said items as per SCN. Reasonable opportunity was also not granted to the appellant to repudiate the same. 4.4 Appellant counsel further contends that as the only ground on which credit has been disallowed is not that appellant has not filed any declaration, but it is due to not filing declaration in the format purportedly desired by the respondent under Trade Notice dated 08.07.1994. is a straight forward case where department has absolutely no justification in denying MODVAT credit as there is no question of evasion or wrongfully claiming of credit. Hence it ought not to be denied for procedure lapse of late filing of declaration and intimation. In fact Rule 57T(2) itself permits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion raised before it, "whether an assessee could avail MODVAT credit in respect of inputs without filing a declaration was not required to be answered". Tribunal accepted the suggestion made to it by an intervener that the amendment to Rule 57G by insertion of sub rule (2), under that rule resulted in a situation in which the credit could not be denied because a declaration was not filed. Sub clause (ii) of sub rule (2) of Rule 57G is para materia with sub clause (13) of Rule 57T. The ratio of the decision of the larger bench would therefore apply to the facts before us. The only ground on which credit has been denied is thus without any basis. I further find that provisions of rule 57T was amended w.e.f. 09.02.2009 and the following has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the goods have been used or are intended to be used as contemplated in the Modvat Rules. In case the assessee's invoice contains the details viz. description of the goods, assessable value, name and address of the factory or warehouse where the goods are to be received, and if the assessee has filed a declaration as contemplated in the Modvat rules, the Assistant Commissioner having jurisdiction over the factory would allow the credit of duty so paid after making enquiries as above." Further, in the case of M/s Kamakhya Steels (P) Ltd. 2000 (121) ELT 247, the larger bench has observed that even pending cases are to be disposed of in accordance with the amendment made in rule 57T. The observation made by the Tribunal is as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final products, it would satisfy the test of "Capital goods". The main contention of Mr. Rohtagi, however, is that the question whether an item falls within the definition of "Capital goods" would depend upon the user it is put to. The submission is that parts of the items in respect whereof availing of Modvat credit has been allowed by the Tribunal could not be treated as "Capital goods" as the manufacturer could not establish that the entire item was used in the manufacture of final product. To illustrate his point, Mr. Rohtagi submitted that part of a cable may go into the machine used by the manufacturer and, thus, may qualify the requirement of clause 1(a) and, at the same time, another part of the cable which is used only for lights ..... X X X X Extracts X X X X X X X X Extracts X X X X
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