JUDGMENT
S.L. Peeran, Member (Judicial)
1. This is a Revenue appeal against the order in original No. 158/96 dt. 5.10.96 by which the Ld. Commissioner has confirmed the demand of duty and also has granted the benefit of Modvat credit in respect of the claims made by them on the demands raised by the Department in the show cause notice. He has confirmed duty amount of Rs. 94,391/- on clearances of final products removed by the appellants without payment of duty and has also penalty of Rs. 25,000/- However, he held that in the light of the several Tribunal decisions the claim made by the assessee with regard to the claim of Modvat credit is required to the considered by the jurisdictional Assistant Commissioner and grant the same after examining the duty paying documents to be presented by the assessee. The Revenue is aggrieved only with this part of the order and contends that as the goods were cleared without payment of duty and without filing declaration under Rule 57 G therefore the question of granting of Modvat credit on the “inputs” used in the manufacture of final product does not arise.
2. Appearing on behalf of the Respondents, the Ld. Consultant submits that identical orders of the Commissioner which came up for consideration before this Bench last week and the Tribunal applying the Apex Court judgments rendered in the case of reported in Formica India (77) ELT 521 (SC) upheld the Commissioner’s order. He also relies on the decisions rendered in the case of Prayag Polymers (P) Ltd. v. CCE, reported in 1996 (84) ELT 80 (T), Chamundi steel Re-Rolling Mills v. CCE, reported in 1996 (81) ELT 5623(T), Dalmia Industries Ltd. v. CCE., reported in 1996 (84) ELT 60 (T) Gujarat Ambuja Cement v. CCE reported in 1996 (85) ELT 154 (T) and other judgements wherein of Modvat credit has been upheld.
3. Appearing for the Revenue, the Ld. DR contends that the Department has not accepted the Commissioner’s view for the reason that the Respondents have not filed declaration and has not followed the procedure laid down for claiming Modvat credit and have not taken excise licence. As they have admitted the duty liability, hence the Modvat credit cannot be extended.
4. On a careful consideration of the submission made by both the side we notice that the Commissioner has rightly granted the benefit of Modvat Credit. The said grant of Modvat has to be given by the jurisdictional Assistant Commissioner only after due verification of duty paying documents. The assessees have not challenged the confirmation of duty and penalty. The revenue is aggrieved with the grant of Modvat credit only on the ground that the Respondents have not taken out licence and filed declaration under Rule 57 G. However, the Tribunal has over ruled this plea in large number of case referred to above. The Hon’ble Apex Court judgement also had held the benefit of set off is required to be granted wherein there is no duty liability as held in Formica India’s case (supra). This judgement has been applied in identical orders passed by the Commissioner. The revenue appeals on the identical issues have been rejected by the Tribunal. Therefore respectfully following the ratio of the judgements we do find any infirmity in the impugned order and hence the order passed by the Commissioner granting Modvat credit is upheld. There is no merit in the Revenue’s Appeal and the same is rejected.
(order dictated and pronounced in the open court)