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TMI Blog2001 (9) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... e 57T(1), the Assistant Commissioner has got powers to condone the delay and hence the assessee was eligible to take Modvat credit on capital goods. The findings recorded in paras 4 to 6 of this order are reproduced below : "4. The appellants' main plea before me is that even though the capital goods were procured by them between May and August 1995, they did not file the declaration as they were under the bona fide belief that the declaration, if any, needs be filed only after obtaining the registration certificate from the Central Excise department, i..e. after 21-9-95. Their plea is that the date of Central Excise registration should be taken for computing the limitation under Rule 57T(1) of the Central Excise Rules. 5. I find force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of second proviso of Rule 57T(1). Therefore the Assistant Commissioner's orders are not correct and have to be set aside. As the appeals are being allowed, there is no question of the imposition of penalty which does not survive. The penalty is accordingly, vacated. I have decided on the above lines a few appeals viz. 112/96 (M) filed by M/s. Uniflow, Madras - vide Order-in-Appeal No. 8/97 (M), dt. 9-1-97. 6. In view of the above discussions, I allow both the appeals." 2. Shri G. Sreekumar Menon, learned SDR referred to the entire grounds of appeal taken up by the Revenue and contends that nothing can be inferred from Section 2(e) of the C.E. Act, which defines the term "factory" that only after the issue of registration certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or makes such declaration subsequently within the period of one month or such further period as may be allowed by the Assistant Commissioner for a maximum period of another two months, from the date of receipt of said capital goods in the factory, in such an event the declaration has to be accepted. He has held that the factory has not come into existence as the registration was granted on 21-9-95, although the goods were received earlier i.e. in May 95. We notice that the Commissioner (Appeals) has clearly interpreted the second proviso to Rule 57T(1) to mean the registration of the factory. A flexible interpretation taken by the Commissioner (Appeals) is justified in the facts and circumstances of the case. If a factory has to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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