JUDGMENT
Archana Wadhwa
1. The relevant para of the order of the Commissioner (Appeals) disclosing the reasons for rejecting the appeal is reproduced below:-
“From the facts-in-issue, I find that on all occasions the declarations have been filed after receipt of the capital goods in their factory, although the same have been filed within condonable time limit of one month. I also find that Board Vide its Circular No. 181/15/96-CX dated 7.3.96 has clarified that where a declaration is filed after receipt of the capital goods the manufacturer should be required to file along with the declaration an explanation for delay in filing the same. Thus, condonation application is required to be filed along with the declaration. But in all the cases, the appellants could not file the condonation applications along with the declarations. So, the Asstt. Commr. has rightly disallowed modvat credits in the impugned case. The case law, as relied upon by the appellants, being passed in different circumstances, is not applicable to the instant case, and, hence, the same does not come to the rescure of the appellants. For unauthorised availment of credits, imposition of penalty, as made in the impugned order-in-original stands justified.”
2. A reading of the above para shows that though the declarations were filed within condonable time limit, the only reason for non-consideration of the prayer for condonation is that the applications for condoning the delay were not filed along with declarations but were filed subsequently after a lapse of three months. I find that there is no time limit prescribed under the Rules for filing the application seeking condonation of delay. Shri B.N. Chattopadhyay, ld. Consultant has referred to the Tribunal’s decision reported in 2000 (40) RLT 718 (CEGAT) which is to the effect that credit is admissible as the declaration was filed within three months from the date of registration of the factory and in respect of capital goods received prior to the registration.
3. Inasmuch as, no rule requires the assessee to file the condonation application along with declaration or within any specified time limit, I set aside the impugned order and remand the matter to the Assistant Commissioner for considering the said condonation of delay application. The delay in filing the declaration under the provisions of Rule 57T is also reported to be ranging from 1-2 days to maximum of one month. As such, the delay also does not appear to be un-reasonable. The Assistant Commissioner would look into the said aspect while considering the condonation application afresh. Appeal is thus allowed by way of remand. Stay Petition also gets disposed of.
Dictated and pronounced in the open Court.
