CCE Vs. ETERNIT EVEREST LIMITED

JUDGEMENT

(1.) THE respondents manufacture Asbestos Cement Products falling under Chapter 68. The Central Excise duty was levied on these products vide Notf. No. 4/97 -CE dated 1.3.97. Consequently, the assessee started paying duty on the end products and availed the modvat credit on the inputs under Rule 57A of Central Excise Rules, 1944. They filed a declaration under Rule 57H on 6.3.97 declaring the stock of finished goods, semi -finished goods and cement as on 1.3.97. Subsequently, they filed another declaration on 9.6.97 on the items Felt and Open ended S.S. Wire in respect of which they availed the modvat credit amounting to Rs. 45,462 on 30.6.97. They were, however, put on notice and the Assistant Commissioner of Central Excise, Jabalpur, vide his order dated 29.10.98 disallowed the modvat credit of Rs. 45,462 on the ground that the modvat credit had been taken under Rule 57H prior to submission of declaration under Rule 57G of Central Excise Rules, 1944. The party filed an appeal and the Commissioner (Appeals), vide his order dated 1.4.2002 held that the provisions of Rule 57H, particularly Sub -rule (5) does not require filing of a declaration under Rule 57G and it is an independent provision; that it merely says that after filing of the declaration under Rule 57H and obtaining the dated acknowledgement, they are eligible to take credit of duty paid on inputs received by them. Consequently, he allowed the appeal of the party by setting aside the order of the original authority.

(2.) THIS is a Revenue appeal against the impugned order of the Commissioner (Appeals). I have heard Shri H.C. Verma, JDR for the appellants and Shri Nand Kishore, Advocate for the respondents. I have considered the submissions made before me. The only proposition raised in this appeal is that Rule 57H is a transitional provision; that though the products manufactured by the respondents became dutiable with effect from 1.3.97, the requisite claim under Rule 57H was filed on 9.6.97 and the modvat credit was taken 30.6.97 i.e. four months after the imposition of new levy. It is contended that the modvat credit availed by the respondents is liable for rejection as the period of two months cannot be construed to constitute "immediately before" filing of declaration under Rule 57G. The written memo of appeal filed by the Revenue further goes on to say that though the delay in filing the declaration under Rule 57H was not one of the grounds taken in the show cause notice, it should have been taken into account by the Commissioner (Appeals), particularly when on merits the respondents did not defend their case before the adjudicating officer regarding disallowance of the credit under Rule 57H of Central Excise Rules, 1944.

(3.) SHRI Nand Kishore, Ld. Counsel for the respondents is relying on the decision of the Tribunal in the case of CCE v. Mahabir Wax 2001 (138) ELT 130 (T) in which it is observed that the expression "Immediately before" means that the inputs lying in the stock before the receipt of dated acknowledgement and available for verification and that there is no time limit specified for filing application under Rule 57H. Since the Revenue in their appeal themselves are saying that the delay in filing the claim under Rule 57H was not one of the grounds taken in the show cause notice, the present appeal which goes beyond the parameters of the show cause notice cannot be continued. Further, the case is fully covered in favour of the respondents by the aforesaid decision of the Tribunal in the case of M/s. Mahabir Wax. The present appeal has no merits and the same is accordingly rejected.