ORDER
G.N. Srinivasan, Member (J)
1. This is an appeal filed by the appellants against the decision of the Commissioner of Central Excise and Customs (Appeals), Pune made in Order-in-Appeal No. P-II/67/98, dated 12-6-1998 confirming the Order-in-Original No. V(Mod Dem) 15 194/Adj/96/1226, dated 22-12-1996 made by the Assistant Commissioner of Central Excise, Kolhapur.
2. The facts of the case are that the appellants are engaged in the manufacture of steel castings falling under Chapter Headings 72,73 & 84 of the Central Excise Tariff Act, 1985 They were availing Modvat credit of duty on various inputs used in or in relation to the manufacture of final product. The inputs amongst other things were light diesel oil. They have filed declaration under Rule 57G of the Central Excise Rules sometime on 18-10-1994. A show cause notice was issued on 1-5-1996 stating that the appellants did not file any declaration. A reply was filed. The Assistant Commissioner by his order dated 22-12-1996 rejected the contention. In fact in the reply dated 4-6-1996 the appellants have stated by Order-in-original No. CEx/Adj/35/Kop/96, dated 30-5-1996 the case was dropped allowing credit to LDO. The Assistant Commissioner distinguished the same stating that the case involved was regarding admissibility of LDO as an input. But in the next sentence he held that the issue involved is that the assessee has taken the credit on LDO without filing Modvat declaration. So he disallowed the credit against which an appeal was filed and the appellate authority confirmed the same. Hence the present appeal.
3. When the matter was taken up for admission, with the consent of the parties and after waiving pre-deposit appeal itself was taken up for consideration.
4. In the Assistant Commissioner’s order it has been specifically held as follows :-
“The assessee has availed credit on Light Dicsc Oil without filing declaration under Rule 57G. The assessee in their reply dated 4-6-1996 have enclosed a copy of the OIO No. CEX/ADJ/35/KOP/96, dated 30-5-1996 stating that the case is dropped allowing credit on Light Diesel Oil. It is seen that the case involved in the above OIO was regarding the admissibility of Light Diesel Oil as an input. However, in the instant case, the issue involved is that the assessee has taken credit on Light Diesel Oil without filing the Modvat declaration, for which the assessee has not answered.”
When the Assistant Commissioner by his order dated 30-5-1996 dropped the proceedings it amounts to show that the credit has been given in respect of input LDO. Further it means that LDO was eligible for credit, viz. the declaration under Rule 57G had been filed. The department has not brought to my notice any appeal filed by the department against the decision of the Assistant Commissioner dated 30-5-1996. Under these circumstances the order-in-original passed by the Assistant Commissioner on 22-12-1996 as affirmed by the order-in-appeal dated 12-6-1998 is absolutely wrong in law. Both the orders are set aside. I allow the appeal granting Modvat credit of Rs. 41,908/- claimed by the assessee.
5. Appeal stands allowed.