ORDER
T.P. Nambiar, Member (J)
1. This appeal is filed against the orders passed by the Commissioner (Appeals) in Order No. 26/96, dated 30-12-1996. In Para 5 of the impugned order, he held as follows :
“5. I have examined the order-in-original and the contentions of the appellants carefully with reference to available case records. I find that the factory was registered by the Factories Department on 15-10-1994. Therefore, the appellants factory is considered to have been come into existence from 15-10-1994, i.e. before filing of the declarations. From the dates of receipt of goods in respect of which capital credit has been denied vide Annexure I to the adjudication order, it is seen that the declaration was filed beyond three months from the date of receipt of the goods into the factory. The Central Excise Officers being creatures of the statute, are not empowered to exceeds the time limits specified in the provisions of the Central Excise Act or Rules.”
2. The learned Advocate, Shri Prabhakara Sastry, appearing for the appellants, contended that the definition of factory Under Section 2(e) of the Central Excises and Salt Act, 1944, is to the effect that any premises, wherein, excisable goods are manufactured. He pointed out that date of registration with the Factory Department is the material date. He pointed out that the factory thus came into existence on 8-2-1995, being the date of registration or on 15-10-1994, being the date of application for registration. Viewed from both the above said dates, the declaration filed on 24-10-1994 and 10-11-1994 are within a period of 3 months. He, therefore, stated that the credit is available. In this connection, he relied on the decision of the Tribunal in Order No. 1850/97, dated 5-8-1997 1997 (95) E.L.T. 522 (Tribunal), wherein, at paras 2 to 5 it is held as follows:
“2. It is no doubt true, going by the language of the Rule, that the Assistant Collector can condone the delay in filing the declaration only for a maximum period of 3 months from the date of receipt of the capital goods in the factory. In other words what is apparently implicit in the Rule is submission of declaration simultaneously on receipt of the goods in the factory. Looking at the matter from this angle, it can perhaps be said that the Assistant Collector could not have condoned the delay in regard to the capital goods received before more than 3 months prior to the declaration. The consequence would be to deny the benefit of Rule 57Q of the Rules to persons who even before registration of factory under Rule 174 of the Rules or commencement of production, purchase and receive capital goods in their premises. When this was pointed out, the Board purportedly clarified, by letter dated 26-11-1994, that credit of duty is admissible only when the capital goods enter into production and, therefore, it will not be appropriate to allow credit at the stage of initial setting up of the factory (where the factory is not yet in existence) and the manufacturer intending to take credit in such a case shall continue to file declaration as required irrespective of the fact that such a factory has not come into existence and or got registered. The Board also indicated that credit on capital goods received at the time of establishment of the factory can be availed only after the factory commences production and is registered. From the above clarification, it is not clear whether the intending manufacturers were required to submit declarations even before registration or commencement of production.
3. The Board, in letter dated 7-3-1996, stated that credit should not be denied merely on the ground that the declaration was filed after receipt of the capital goods. But the manufacturer should be required to file an explanation for the delay in filing the same.
4. Our attention has been invited to Section 2(e) of the Central Excise Act, 1944, which defines factory, inter alia as any premises wherein which excisable goods are manufactured on process connected with the production of excisable goods is being carried out or is ordinarily carried on. It is also pointed out that the proforma prescribed for the declaration contains a column to furnish the date of registration under Rule 174 of the Rules. Rule 174 of the Rules requires registration by every person, who, inter alia manufactures excisable goods. Thus, registration is necessary for commencement of production.
5. From what we have indicated above, it is clear that there was a grey area in relation to the question whether declaration should be submitted by a person in the process of establishment of factory in regard to the receipt of duty” paid capital goods in the premises where the factory is intended to be set up. Since the position was not clear at the relevant time, i.e. 1994, it would be denial of justice if the benefit of Rule 57Q of the Rules, is denied to a person like the appellant. In these peculiar circumstances, we hold this to be a fit case to hold that the declaration must be regarded as filed in time. The jurisdictional officer will pass a consequential order. The appeal thus allowed.”
3. Heard the learned JDR. He could not distinguish the decision.
4. I have considered the submissions. The period involved in that decision is April, 1994, so is the period in this case. Following the above said decision of this Bench of the Tribunal, I am of the view that it would be denial of justice if the benefit of Rule 57Q is denied to a person like the appellant.
5. Hence in the facts and circumstances of the case, which is identical to the above said case decided by this Bench of the Tribunal, I hold that this is a fit case to hold that the declaration is filed in time.
6. The appeal is allowed with consequential relief.