COMMISSIONER OF CENTRAL EXCISE Vs. KUMAR STEELS

JUDGEMENT

(1.) BY this petition under Section 35G(3) of the Central Excise Act, 1944 (for short theAct) the Revenue seeks a mandamus to the Customs, Excise and Gold (Control) Appellate Tribunal to state the case and refer the following questions for the opinion of this Court. '1. Whether on the facts and in the circumstances of the case the application filed by the respondent under Rule 57F(2) amounted to a declaration under Rule 57G which categorically prescribes that an independent declaration shall be filed and that the party filing shall obtain a dated acknowledgment of the said declaration.

(2.) WHETHER the requirements of Rule 57G are mandatory and cannot be taken as substitute by the filing of an application under Rule 57F(2).' 2. Briefly stated, the material facts leading to the filing of the present petition are that the assessed is engaged in the manufacture of stainless steel flats, steel ingots, M.S. ingots, covered by Chapter 72 of the Central Excise Tariff Act, 1985. On the allegation that the respondent -assessee had not filed a declaration under Rule 57G read with Rule 57A of the Central Excise Rules, 1944, a show cause notice was issued to it for wrongly availing and utilising Modified Value Added Tax (for short 'MODVAT') to the tune of Rs. 738,597/ -, but the same was withdrawn subsequently. However, on a motion by the Commissioner (Review), Central Excise, under Section 35E(4) of the Act, the order dropping the proceedings initiated by issue of the said show cause notice was reviewed by the Commissioner Central Excise (Appeals), New Delhi. The Commissioner (Appeals) took the view that the assessed had wrongly availed of Modvat credit on the inputs used in the manufacture of stainless steel flats without filing the mandatory declaration under Rule 57G and the credit was utilised against payment of duty on the said final product. He, accordingly held that the show cause notice issued by the adjudicating authority was wrongly withdrawn.

(3.) BEING aggrieved with the said order, the assessed preferred an appeal to the Customs, Excise and Gold (Control) Appellate Tribunal, mainly on the plea that the Commissioner (Appeals) had not granted personal hearing to them. Accepting the plea, the Tribunal remanded the case back to the Commissioner (Appeals) for re -adjudication. The Commissioner (Appeals) reiterated the afore noted view taken earlier. The assessed again challenged the said order by preferring further appeal to the Tribunal. While accepting the stand of the assessee, the Tribunal held as follows : 'We find that in the instant case, the appellants had made a declaration in the classification list effective from 6 -3 -1992 stating that they will be availing modvat credit on S.S. Flats. We also note that the appellants had, while taking permission for sending the goods to the job workers under Rule 57F(2) of the Central Excise Rules, 1944, had clearly indicated that they will be manufacturing S.S. Flats. We also note that the Asst. Collector had allowed them permission during the relevant period for this purpose. When these two are read together, we note that there was substantial compliance with the requirement of filing a declaration for purposes of Rule 57G(2)...' 'In the instant case, we note that there was a definite declaration in the classification list as also the permission accorded to the appellants by the Department clearly brought out that the appellants were manufacturing S.S. Flats.'