ORDER
Lajja Ram
1. In these group of appeals filed by M/s. Sylvania & Laxman Pvt. Ltd. the matter relates to the duty liability on the product referred to as stems used in the manufacture of electric bulbs. The Collector of Central Excise, Delhi has taken a view that these stems were marketable and were traded as such in the market and the manufacturers of bulb who had no facility to manufacture the stems were procuring them from the open market. He has confirmed the duty of Rs.67,01,248/-. The assessee has taken up the matter with the Delhi High Court and the High Court had disposed of the matter with the observation that there was no ground of alleging suppression inasmuch as the stems which were used by the petitioner in manufacturing the electric bulb not exceeding 60 watts were not subject to levy of excise duty in terms of Notification No.67/83-CE dated 1.3.83. Thus the High Court had taken the stems as excisable but exempt in view of the Exemption Notification.
2. When the matter came up before the Tribunal for hearing their stay application the Bench under directions dated 11.8.95 asked the department to verify the submissions made on behalf of the appellants that the stems were entitled for the benefit of modvat credit in respect of the inputs [ (1) lead in wires (2) flare tubing (3) exhaust tubing]. The Departmental Representative under communication dated 15.11.95 placed before the Bench two sets of the verification reports received from the jurisdictional authorities. On the basis of these verification reports unconditional stay was granted.
3. When the matter was called Shri L.P. Asthana, Advocate submits that the stems were not excisable and in any case the appellants were eligible for the benefit of modvat credit if the duty liability is now being hastened on them. He further submits that if the benefit of modvat credit is extended then the appellants are not going to press for other issues including the marketability. It is his submission that the matter being old it may not be possible for the appellants now to furnish any document for verification. His plea is that the verification report is very detailed and the Departmental Representative had endorsed a copy of the verification report to the counsel on record also. He submits that if the modvat credit is given then their duty liability may not be there.
5. Shri R.C. Sankhla, DR submits that even in the verification report the Additional Commissioner of Central Excise had mentioned that the modvat claim of the appellants was of Rs.1,18,93,814/- while as per the verification report it comes only to Rs.91.57 lakhs. He submits that the High Court’s order nowhere stipulates that the stems were not excisable.
6. After hearing both the sides and after going through the facts on record and taking note of the submissions made by the learned advocate while with regard to the marketability in view of the High Court decision this issue needs not be gone into. We consider that the benefit of modvat credit should not be denied only on the ground that at the particular time the appellants did not claim for the benefit of modvat credit. At that stage they were disputing the excisability and dutiability with regard to the product in question i.e. stems. There are a number of decisions of this Tribunal that the benefit of modvat credit should not be denied solely on the ground that during the relevant time the assessee could not file requisite declaration.
7. We also take note of the verification report dated 3.11.95 of the Additional Commissioner of Central Excise, Delhi addressed to the SDR in this Tribunal alongwith a number of documents towards verification of the input quantity and duty etc. We also take note of the fact that the factory is closed and no fresh document may be available for verification. The jurisdictional Commissioner may get this verification report into account and extend the benefit of modvat credit based on this verification report.
8. Accordingly, all these appeals are allowed by way of remand. Ordered accordingly.
Dictated and pronounced in the open Court.