ORDER
P.S. Bajaj, Member (J)
1. This appeal has been, directed against the impugned order-in-appeal dated 12-6-2002 vide which the Commissioner (Appeals) has affirmed the order-in-original of the Deputy Commissioner disallowing the Modvat credit of Rs. 2,08,500/- and imposing penalty of Rs. 10,000/-, on the appellants.
2. The facts are not much in dispute. The appellants availed the Modvat credit of the above said amount on 30-6-99 in respect of the capital goods under Rule 57Q without any supporting duty paying documents. This credit had been disallowed to them on the ground that they did not seek any permission from the competent authority. However, the plea taken up by the appellants was that
they earlier took the credit in September, 98 of this amount on the strength of 3 invoices, but they debited the credit on 19-2-99 on the ground that it was not admissible to them. But later on, they suo motu re-credited this amount in RG 23C
Part-II, and as such could not be disallowed to them.
3. The only issue involved in the appeal is as to whether the appellants after having once debited the credit on 19-2-99, could suo motu take credit again by re-crediting the same in RG 23C Part-II on 30-6-99.
4. The learned Counsel has not been able to refer to any provision of the Central Excise Act or Rules framed thereunder, under which the re-credit of the Modvat credit could be taken suo motu by the appellants when earlier they had already debited the same. The Counsel has only referred to the case of Indo-American Electricals Ltd. v. Commissioner of Central Excise, Bolpur – 1999 (108) E.L.T. 797 wherein it has been observed that re-crediting of the amount could not be denied on the ground of non-seeking of the permission of the Assistant Commissioner. But, in that case, the assessee approached the Assistant Commissioner for permission for re-crediting the Modvat credit which was reversed under the direction of the Superintendent and after having failed to get any response from the A.C., the assessee of his own, took re-credit of the same. But such is not the position in the case in hand and as such, the ratio of law laid down in that case is not attracted to the facts of the present case. In the instant case, there is nothing on the record to suggest if the appellants re-credited the amount of their own, on the strength of any duty paying documents. Earlier the documents used by them for taking credit in September, 98, could not be re-used by them for taking recredit in February, 99. The argument of the Counsel that there is no provision in the Modvat Rules requiring permission for retaking of the credit, is wholly misconceived and cannot be accepted. Under the rules, for taking re-credit, prior permission of the jurisdictional A.C. is required.
5. In the light of the discussions made above, in my view, re-credit of the disputed amount has been rightly denied to the appellants. The impugned order of the Commissioner (Appeals) does not suffer from any legal infirmity and is upheld. The appeal of the appellants is dismissed.