ORDER
K.D Mankar, Member (T)
1. This revenue appeal is against the order-in-appeal passed by the Commissioner (Appeals). Vide the said order, the order passed by the Joint Commissioner confirming the demand of Rs. 77,570/- and penalty of equivalent amount imposed, was set aside. The revenue are challenging the findings of the Commissioner (Appeals).
2. Heard both sides.
3 In this case modvat credit was denied on the ground of non-filing of declaration under Rule 57G and non-availability of original duty paying documents namely, GP 1 No. 2337 dated 23/06/90, which according to respondents was purportedly in the custody of the department. These grounds were alleged for invoking the extended period of time limit for confirming the demand and imposition of equal amount of penalty. Show cause notice was issued on 23 June 94 alleging availment of irregular modvat credit against the inputs, (i) which were actually used in repairing/modification of boilers, which was carried out at site, and on which no Central Excise duty was paid, (ii) which were neither used in the manufacture of finished goods for which the same were brought nor any duty was paid on the said inputs when the same were cleared from the factory as bought out items. It was also alleged that the respondents had not maintained the statutory Central Excise records as required under Rule 173G(4) read with Rule 53, 226 & 57G of Central Excise Rules, 1944.
4. In the order-in-appeal, it has been held that there was no specific allegation of non-filing of declaration under Rule 57G or non-availability of GP1 No.2337 dated 23/06/1990. It is further mentioned that adjudicating authority had accepted that the said inputs were utilised for the manufacture of excisable goods. On the basis of analysis of the facts above, the Commissioner (Appeals), came to the conclusion that, nonavailability of original GPI No.2337 of 23/06/90 and non-filing of declaration are the only two grounds left in dispute. It was noted that the respondents were regularly filing the RT 12 returns and the documents were regularly being defaced. It was accordingly held that the extended period could not be invoked in the facts and circumstances of the case.
5. So far as the non-filing of declaration is concerned, now it is a well settled legal position in terms of the CEGAT judgment in the case of Kamakhya Steel v. CCE, Meerut, reported in 2000 (121) ELT (Tri.LB) that the said failure does not come in way of grant of credit, as long as duty paid nature and the use of inputs in the manufacture of dutiable finished goods is established. So far as the ground for denial of credit in respect of document which was in the custody of the department, I notice that, since the document was already in the possession of the department, which position has not been countered through a contrary evidence, the credit cannot be denied.
6. Since the demand in question is liable to be set aside, the issue regarding the applicability of interest does not need to be examined.
7. In view of the discussions above, revenue appeal is rejected and the order-in-appeal is upheld.
(Operative part pronounced in Court)