ORDER
S. Kalyanam, Member (J)
1. The prayer in the above Miscellaneous application is for a direction to the Department – Collector of Central Excise, Hyderabad – to release the attached goods. Since the R.O.M. application is being disposed of today, the miscellaneous application is dismissed.
2. ROM No. 750/90.- The Rectification of mistake application seeks rectification of an error which according to the petitioner-applicant is apparent on the face of the records in the impugned order of the Tribunal dated 6-10-1987 in Order No. 725/87.
3. Shri R.P. Gupta, Director of the petitioner-applicant company and Mrs. Vidyalakshmi, representing the petitioner-applicant submitted that MODVAT credit of duty paid on the inputs by the petitioner on 1-4-1986 has been denied to the petitioner under the impugned order on the ground that the declaration filed under Rule 57-G of the Central Excise Rules, 1944 relating to MODVAT Scheme was acknowledged by the jurisdictional Asstt. Collector of C. Ex. on 2-4-1986 and, therefore, the credits for 1-4-1986 and prior to acknowledgement of the declaration by the Asstt. Collector is not tenable in law. The petitioner contended that a declaration in respect of the inputs had been filed on 31-3-1986 and has been duly acknowledged by the Range Superintendent. The true copy of the letter containing the acknowledgement of the Range Supdt. dt. 31-3-1986 in respect of the declaration has also been enclosed as one of the documents along with the appeal in addition to a specific plea in this regard in the appeal ground. This aspect of the matter has not been taken note of by the Tribunal and it was urged that it is an error apparent on the face of the records warranting a rectification. The petitioner further submitted that even the Board by a communication (circular) F. No. 261/1/87-CX. 8 dt. 5-2-1987 has clarified that the declaration could be filed before the Range Supdt. or the Asstt. Collector and it is the duty of the Range Officer to send the declaration to the Asstt. Collector immediately after verification.
4. Heard Shri P.B. Vedantham, learned D.R.
5. We have carefully considered the submissions made before us. The short question that arises for our consideration in the present ROM application is whether there is an error apparent on the face of the records warranting rectification. The Tribunal has given a finding in the impugned order that the petitioner would not be entitled to the Modvat benefit for the inputs in question for the period prior to 2-4-1986 on the ground that the declaration under Rule 57-G has been acknowledged by the jurisdictional Collector only on 2-4-1986 and under Rule 57G(2) a manufacturer who has filed a declaration under sub-rule (1) may after obtaining the acknowledgement of the Asstt. Collector take the credit of the duly paid on the inputs received by him. On going through the records we find that on 31-3-1986 the petitioner has addressed a communication to the Asstt. Collector purporting to be a declaration under Rule 57-G of the Modvat Rules. This was presented with the Range Supdt., Hyderabad and has been acknowledged by him on 31-3-1986. It has been forwarded to the Asstt. Collector, Hyderabad who had received it on 2-4-1986. It is not disputed that the inputs in question have suffered duty and the petitioner would be otherwise eligible to Modvat credit in respect of the inputs in question. Filing of a declaration under Rule 57-G is a procedural formality and in the present case the same has been done on 31-3-1986 itself to the Range Supdt. The fact that the Range Supdt. forwarded the same to the Assistant Collector in the same place only on 2-4-1986 cannot be a reason to deny the petitioner the benefit of Modvat credit. The Board has also given a clarification in this regard and for purpose of convenience the same is extracted below verbatim. –
“Date of filing of declaration.-
I am directed to refer to certain doubts raised by the Trade with regard to the date from which the Modvat facility is to be availed of i.e., the date of receipt of the application by the Range Officer or the date of receipt of the application by the Assistant Collector.
Board is of the view that credit under the Modvat scheme has to be allowed to the party from the date on which the declaration is filed by them either with the Range Supdt. or the Asstt. Collector. It is the duty of the Range Officer to send the declaration to Asstt. Collector immediately after verification.” (vide Board’s F. No. 267/1/87-CX.8 dt. 5-2-1987)
At the time when the Tribunal disposed of the matter the Modvat Scheme and the applicability of the Rules thereunder were in a formative stage and now as on date the trend of judicial approach is to take a liberal view in regard to the application of the Modvat Rules and it cannot be gainsaid that Rule 57G(2) is only a procedural formality. On going through the records we find that the declaration made on 31-3-1986 and acknowledged by the Supdt. of the Range on 31-3-1986, has been appended as part of the appeal records along with the appeal papers in addition to a specific plea having been raised in the appeal grounds. Evidently this relevant piece of information which forms part of the records and which ought to have been taken into consideration has been lost sight of inadvertently and this omission to consider the said evidence on record is only an error apparent on the face of the records. Apart from it, when the inputs in question have suffered duty and the petitioner is otherwise entitled to the benefit of Modvat credit, the same cannot be denied more particularly when the Tribunal has by mistake failed to take note of the declaration dt. 31-3-1986 and also the communication of the Board cited supra. The Ld. SDR also did not bring the above evidence to the notice of the Tribunal when the matter was decided. Therefore, in the interest of justice we are of the view that the omission to take note of the evidence cited supra is an error apparent on the face of the records warranting rectification. In this view of the matter, the impugned order is amended by rectifying the error holding that the petitioner would be entitled to the Modvat credit in respect of the inputs in question taken on 1-4-1986. The impugned order would stand modified accordingly after rectification of this mistake.
6. Since the ROM application of the petitioner in regard to the mistake in the impugned order has been considered and the error ordered to be rectified in accordance with law, a Reference Application out of the same cannot co-exist simultaneously along with the rectification application. In this view of the matter the Reference application along with the connected stay petition – E/REF/134/87 and E/REF/Stay/92/88 – is dismissed.