9911796707
TMI Blog2017 (10) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997-Cus. dt. 1.3.1997 (Sr. No.50), (ii) Whether the modvat credit to the appellant on the aforesaid goods can be denied for want of correct declaration made under Rule 57G of erstwhile Central Excise Rules, 1944. 2. Ms. Rukmani Menon, Ld. Counsel appearing on behalf of the appellants at the outset submits that this is the third round of appeal before this Tribunal, in the last order of this Tribunal the matter was remanded particularly on the ground that the principles of natural justice was not followed in as much as copies of reports obtained from the Birla Institute of Technology and Science, BITS, Pilani, and College of Engineering, Goa was not provided to the appellant and also not considered cross-examination of the authors of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment Institutes/Department of Electronics. With this specific direction it was not open for the commissioner to take opinion from any unauthorized person for this reason also the opinion of Kiran Electronics is liable to be rejected. She further submits that the Commissioner in his order relied upon technical report from Nichicon Corporation taken from the internet. In the third round the Commissioner has first time come out with this report, and the same is purely technical report giving the general description of aluminium electrolytic capacitors and giving manufacturing process of the same. In the first place such a report which has not been disclosed previously to the appellant cannot be relied upon. This report is of no relevant wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Office, on which the Ld. Counsel Ms. Rukmani Menon raised a serious objection saying all the documents are available on record and requested to hear the matter and if at all the other side of the view that further documents are required the Bench, may adjourn the matter, on which both sides consented for hearing of the matter. Shri Ajaykumar Ld. AR reiterates the findings of the impugned order. He submits that the appellant have declared the imported goods as cans with leads whereas the factual goods are not only cans with leads but it is assembled with various other parts and the same has been viewed not as cans with leads but aluminium semi-finished electrolytic capacitors as per the reports of the technical expert. Therefore the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke of brevity). "2. The issue in dispute is as to whether the goods imported by M/s Dencap Electronic Private Limited the are 'can with leads' entitled to the benefit of Customs Notification No.13/ 97-Cus dated 1.03.1997 and whether the appellant company herein is eligible to take modvat credit. We find that the grievance of the appellant is two fold - (1) that they did not receive the notice of hearing under the cover of letters dated 03.12.2004 and 19.09.2005, and (2) that copies of the reports obtained from the Birla Institute of Technology & Science and College of Engineering, Goa, relied upon by the adjudicating authority to hold that the imported goods are 'Semi Finished Aluminium Electrolytic Capacitors' and not &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested for cross-examination of author of the reports which could not be conducted. We perused the reports which are scanned below: From the above reports it is seen that the reports not discuss anything about the parameter of the goods and also the composition of goods. The reports only jumped to the conclusion without any basis shown therein that the product should fall under aluminium semi-finished electrolytic capacitors. In this fact, we agree with the Ld. Counsel that much more details of analysis of the subject product should come on record for which the cross-examination is very much necessary. Therefore we find that the order was passed in violation of principles of natural justice by not conducting the cross-examination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that even if it is accepted the appellant have wrongly declared the inputs the modvat credit only for this reason cannot be denied. The fact is that whatever input imported by the appellant was received by the appellant in their factory and used in the manufacture of aluminium semi-finished electrolytic capacitors which was cleared on payment of duty. Since this fact is not under dispute modvat, credit only for want of correct declaration cannot be denied. In terms of amended Rule 57G by Notification No.7/99-CE dt. 9.3.1999, whereby it was clarified that the credit cannot be denied for non-filing of declaration under Rule 57G. This issue has been considered in various judgments and it was consistently held that credit for such lapse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
