HIND LAMPS LTD. Vs. CCE

JUDGEMENT

(1.) THIS appeal is directed against order in appeal dated 27/07/04 which upheld the order in original denying the modvat credit to the appellant and also imposed penalty.

(2.) THE relevant fact that arise for consideration are appellants were manufacturers of Electric Lighting Bulbs and Fluorescent tubes. The said finished products of the appellant were exempted from payment of duty and were brought into the duty net from 01/03/97. The appellant filed claim for modvat credit of the inputs in stock as on 01/0397 and also for the inputs received between 01/03/97 to 16/0397. The appellants filed requisite declaration of the inputs under Rule 57G to the authorities on 17/03/97. Appellant availed the modvat credit on 28/03/97. Show cause notice was issued to the appellant for denying the modvat credit and also for imposition of the penalty having violated the provisions of the Central Excise Rules, in respect of availment of the credit. The appellants contested the show cause notice on the ground that they had availed the modvat credit based on the provisions of Rule 57H of the Central Excise Rules, 1944. The adjudicating authority did not accept the contentions and confirmed the demand and also imposed penalty. On an appeal, Commissioner (Appeals) concurred with the findings of the adjudicating authority and upheld the order in original. Learned advocate for the appellants submits that the appellants had filed the modvat declaration regarding the inputs to be used by them on 17/03/97 and on the very same day filed an application for permission to grant credit under Rule 57H of the Central Excise Rules, 1944. It is his submission that the modvat credit sought to be availed by the letter dated 17/03/97 was scaled down to Rs. 1.53 lakhs by letter dated 19/03/97. It is his submission that provisions of Rule 57H (1B) and 57H (4) would cover the case of the appellant. He also relics upon the order and judgment of the Hon'ble High Court of Madhya Pradesh, Indore Bench in the case of Gilt Pack Ltd. v. Assistant Collector of Central Excise, Indore as reported at 1994 (69) E.L.T. 222 (M.P.). It is his submission that this judgment and order of the Hon'ble High Court is squarely on the point in respect of the provisions of Rule 57H of Central Excise Rules, 1944. He also submitted that the very same order and the judgment of the Madhya Pradesh, High Court was taken up by the revenue in a Special Leave Petition to the Hon'ble Supreme Court which dismissed the same as reported at U.O.I. v. Assistant Collector 1999 (114) E.L.T. A226 (S.C.).

(3.) THE learned SDR submits that the provisions of Rule 57H were in fact are exception for availment of modvat credit in respect of those assessees who could not file the declaration as required under Rule 57G of the Central Excise Rules, 1944. It is his submission that the appellants had in fact filed a condonation of delay for the filing of declaration belatedly and hence their case is not covered under Rule 57H (1B). He submits that the issue is squarely covered by the decision of the Hon'ble tribunal in the case of the Dy. Director, Store Procurement Deptt. v. CCE, Chandigarh as reported at 2000 (123) E.L.T. 1169 (Tribunal).