ORDER
S.L. Peeran, Member (J)
1. These are Revenue appeals against common order passed by Commissioner (Appeals), Chennai by Order No. 296/97 dated 25-11-1997. The issue before the Commissioner was with regard to availment of Modvat credit by the present respondents in terms of their declaration filed initially on 31-3-1994 along with details and enclosures which contained a table with all particulars of the inputs, nature of the inputs /final product. The only particular missing in the said declaration was tariff classification, tariff heading/sub-heading of the products. Therefore, the Asstt. Commissioner on the said declaration dated 31-3-1994 endorsed that “Permission after verification report from RO IC”. Appellants again furnished all the missing particulars by fresh enclosures on 27-6-1994 giving details of final product, and its classification of chapter heading, sub-heading, description of inputs and its tariff classification, nature of the inputs etc. They furnished further clarification by another declaration on 22-7-1994 thereby initial declaration filed on 31-3-1994 was complete in all respects. After some time, the department issued five show cause notices alleging that they have wrongly availed Modvat credit and filed improper declarations during the period August, 1994 to January, 1995 on the ground that initial declaration was incomplete in all respects and the particulars of classification which was not furnished. It was pointed out that the declaration was accepted by AC on the endorsement and not as “returned or rejected”. It was also pointed out that the credit was availed only after the final particulars were accepted on 22-7-1994 and not during the interim period. However, the AC was not satisfied with the explanation and rejected the same. The Commissioner in the order impugned held that in the declaration initially filed by respondents herein is also required to be considered as ‘declaration’ and merely because few details were found wanting on the same declaration, therefore on that count, it cannot be held to be that no declaration had been filed under Rule 57G and therefore the Commissioner (Appeals) accepted the same. By the same order, he has also rejected the grant of Modvat credit on few items which is not challenged by respondents/assessee. On another issue with regard to availment of credit on the basis of documents held to be violative of notification No. 15 and 16/94, the Commissioner (Appeals) did not agree with the AC’s observations and observed that the said AC’s order was totally insufficient for understanding the issue in detail and on that count, remanded the issue. This portion of the order is not challenged by Revenue. Revenue is aggrieved only with regard to declaration which was filed on 31-3-1994 which has been accepted by Commissioner (Appeals).
2. Ld. DR Shri M. Kunhikannan argued the matter and contended that in reply to the show cause notice, no contest was raised with regard to three show cause notices. He submits that unless the declaration is complete in all particulars, it cannot be considered as a declaration in the eye of law and therefore the declaration having been accepted only on 22-7-1994, the credit availed for the earlier period from March, 1994 cannot be said to be proper one. Hence the order passed by the Asstt. Commissioner reversing the credit taken for those periods is required to be confirmed by allowing the appeal. He refers to the grounds taken-up in the appeal memo which have been perused and read by us.
3. Ld. DR also points out that the Commissioner was not justified in making observations against AC’s order remanding the issue on non-fulfilment of Notification Nos. 15 and 16/94.
4. Ld. Counsel Shri R. Raghavan appearing for respondents submits that Revenue has absolutely no case for the reasons that initial declaration filed on 31-3-94 has been accepted by the AC with proper endorsement and gave permission to the Range Officer to verify and place the report on the particulars furnished. He submits that the Range Officer ought to have pointed out as to how the declaration was not meeting the eye of law. No such exercise has been done. He submits that the shortcomings with regard to description and tariff classification of the inputs which were all furnished and there was no material alteration to the declaration filed initially and the same was complete in all other respects. He submits that merely because some particulars were furnished subsequently, it cannot be held that respondents had not filed any Modvat declaration at all for availing credit. It is his contention that they did not take Modvat credit till it was fully satisfied with the particulars and this last particulars is deemed to be in continuation of the declaration filed on 31-3-1994 and therefore there was no substantive violation of Modvat rules. He brings to our notice the judgment of the NRB rendered in Greysham & Co. v. CCE as in 1999 (99) E.L.T. 75 wherein it has been held that delay in filing the declaration prior to availment of credit on the declaration already furnished to the department is condonable and benefit cannot be denied.
5. Ld. Counsel further submits that Rule 57G(5) as existed during the relevant period lays down that where a manufacturer was not in a position to make a declaration but however makes the declaration and for the reasons to be recorded in the order by AC, he can condone the delay in filing the declaration and allow the manufacturer to take credit paid on the inputs. He submits that no allegation has been brought out by department with regard to variance of any inputs in respect of documents furnished so as to take a view that substantive provision of Modvat rules has been violated.
6. Ld. Counsel also points out that there was no violation of Notification Nos. 15 & 16/94 and all the documents were furnished prior to 31-3-94 and the credit although has been taken on 30-6-94 yet the Tribunal has ruled in several cases that such availment is proper. He submits that he has no objection for the order of Commissioner (Appeals) of remand to be retained and respondents be given an opportunity to produce all the Tribunal judgments to satisfy that there was no violation of notifications in question.
7. Ld. Counsel submits that the show cause notice .is not specific and clear without bringing out the violation of Modvat rules except to say that there was a contravention. Therefore the entire proceedings itself is violative for want of specific charge in the SCN.
8. In counter, ld. DR submits that charges made out are clear i.e. for non-fulfilment of procedure under Rule 57G in as much as appellants had not filed proper declaration and this is sufficient for the purpose of understanding that substantive benefit of Modvat rules has not been complied with.
9. On a careful consideration of these submissions, and on perusal of the entire records, we find that the aspect was pertaining to remand of the matter on Notification Nos. 15 & 16/94 is a proper order as Commissioner has observed that the AC had not given sufficient reasons for proper understanding of the requirements of the fulfilment of notification. Since this issue was remanded, it is not proper to set aside that portion of the order and to hold that the AC was right in refusing to take credit taken in respect of documents which were furnished prior to 31-3-1994. However, the aspect is required to be re-examined in the light of the Tribunal judgments on this aspect which has already been remanded.
10. As regards the Commissioner’s finding on the declaration filed on 31-3-1994, we are of the considered opinion that the order passed by Commissioner is just, legal, and proper for the reason that appellants had filed detailed declaration in the prescribed format with a covering letter. The only details which were missing were with regard to chapter heading/subheadings of the inputs/final product. Appellants had certain reasons for not giving, as the same were not available as explained by them. For that reason, the AC had endorsed on the covering letter that “Permission after verification report from ROIC”. The Range Officer, it appears, has made oral request to the present respondents to file revised declaration with all particulars which was filed in continuation of the declaration on record. Subsequently, all the particulars have been accepted and they have not found any violation with regard to inputs being eligible for Modvat credit. There is no allegation of any substantive violation except to plead that the last particulars furnished should be considered as the only declaration and the first declaration made on 31-3-1994 is not to be considered as declaration at all. Commissioner (Appeals) has rejected this stand on cogent and correct reasons as the same was accepted by the AC by proper endorsement. The violation was only a venial breach of law or technical violation in the sense that only the tariff description was missing which was furnished subsequently. Even Rule 57G(5) grants powers to AC to give permission to appellants to furnish declarations belatedly and the AC can grant the same by condoning the delay by giving proper reasons. Therefore, there is inherent powers granted to the Asstt. Commissioner to accept even belated declaration. In the present case, the declaration has been filed in time except the particulars of classification of subheading etc., which was furnished later. It is also seen that appellants did not take credit immediately on filing this declaration on 31-3-1994 but took the credit only when all the particulars were found to be in order which were accepted in July 1994. Therefore, there is no substantive procedural violation to deny the benefit and the Commissioner (Appeals) has rightly accepted the explanation. There is no merit in the grounds made out and hence Revenue appeals are rejected.