DIAMOND WIRE INDUSTRIES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THESE are four applications for rectification of mistake in combined final order Nos. 496 -499/2000 -B, dated 06.01.2000.

(2.) THE representative of all the Applicants submitted that the Appellate Tribunal denied them the benefit of exemption from payment of duty in respect of enamelled copper winding wire manufactured by them under Notification No. 69/86 -CE, dated 10 -12 -1986; that during the course of hearing of their appeals, they had requested for availability of the Modvat credit under Rule 57A of the Central Excise Rules and the Bench had indicated that the Modvat credit earned by them but not utilised would be allowed; that, however, the Final Order does not direct the Department to allow Modvat credit; that as such there is an error apparent on face of the record which may be rectified under Sub -section (2) of Section 35C of the Central Excise Act. Shri Riyaz Hussain, Proprietor, of M/s. Prestige Wire Industry, in addition, also mentioned that he was also denied the relief of duty paid at the higher rate on the ground that the issue was not raised before the lower authorities; that he had written a letter dated 07.09.1996 to the Assistant Commissioner. We also heard Shri R.K. Sharma, learned SDR.

(3.) WE have considered the submissions of both the sides. On checking the records of hearing granted to the Appellants on 06.01.2000, we observe that the question of availability of Modvat credit was raised by the Applicants. As no direction has been given in the Final Order passed by the Tribunal, there is an error apparent on the face of the record which needs to be rectified. It has been consistent view of this Tribunal that if any product, considered to be exempted from payment of duty initially, is held to be liable to central excise duty, Modvat credit will be available to the Assessee irrespective of the fact that Modvat procedure of filing the declaration, was not followed. Accordingly, we rectify the mistake by ordering that the Appellants would be eligible for Modvat credit of the duty paid on the inputs which were used in or in relation to the manufacture of enamelled copper winding wire manufactured by them and involved in the present proceedings subject to the condition that the Applicants satisfy the jurisdictional Assistant Commissioner by producing documentary evidence that eligible inputs were duty paid inputs.