9911796707
TMI Blog2001 (1) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... cial year, 1997-98; that another Notification No. 38/97-C.E. was issued on 27-6-1997 which contained an alternative scheme of exemption for small scale units which provide manufactures an option to avail of the Modvat credit even while paying concessional rate of duty; that they filed a declaration under Rule 57G for availing Modvat credit to the Asstt. Commissioner under their letter dated 30-3-1998; that after filing the said declaration they took Modvat credit amounting to Rs. 1,43,884/- in their RG 23A Part-II on 30-3-1998; that the Dy. Commissioner under Adjudication Order No. 173/99, dated 7-12-1999 disallowed the Modvat credit and imposed a penalty of Rs. 75,000/- holding that the Appellants did not file any declaration under Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Rule 57G for availment of Modvat credit, they had made their intention clear to the Department that they were going to avail of the exemption under Notification No. 38/97 and as such it cannot be said that they had not filed a declaration as required under the said notification; that in any case no penalty is imposable. 3. Countering the arguments Shri M.P. Singh, learned DR, submitted that availment of credit means taking of the credit in the books of account of the manufacturer; that the utilisation of the said credit can be at any time in future; that availment and utilisation cannot be treated as synonymous; that the arguments of the learned Advocate that the condition of the Notification No. 16/97 was that the inputs shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturer intending to avail the exemption in a financial year shall exercise his option in writing and such option shall be effective from the date of exercise of the option and cannot be changed during the financial year under any circumstances; that no such option in writing was filed with the Department; that filing of Modvat declared under Rule 57G cannot be treated as an option under Notification No. 38/97. 4. The learned Advocate in reply again contended that Notification No. 16/97 contains the condition for availing of benefit of the notification and if the condition of the notification is not satisfied, the benefit under the notification can only be denied; that the provision of Rule 57-I of the Central Excise Rules are only invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the notice on the manufacturer requiring him to show cause for disallowing credit. As the credit has been taken by the Appellants wrongly the Department was within its right to disallow the same under Rule 57-I. We also agree with the learned DR that no declaration under Notification No. 38/97 was filed by them and the Modvat declaration under Rule 57G' could not be a substitute for the requirement of Notification No. 38/97. Accordingly we uphold the disallowance of Modvat credit and the demand of the same from the Appellants. However, taking into consideration all the facts and circumstances of the case we are of the view that it is not a fit case for imposition of penalty and accordingly we set aside the same. The appeal is, thus, partl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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