C.N.B. Nair, Member (T)
1. When the stay application came up for consideration, I heard both sides, at length, and have perused the records. The appeal itself can be disposed of. Accordingly, after waiving the requirement for pre-deposit, I proceed to consider the appeal.
2. Modvat credit on capital goods remains denied under the impugned order for the reason that the classification adopted by the seller of the invoices did not tally with the classification indicated by the appellants in their capital goods’ declaration. The appellant’s contention is that the difference in classification cannot be a ground for denial of credit and this position remains settled by the judgements of this Tribunal in the cases of J.B.M. Tools Ltd. and Kamakhya Steel (P) Ltd. .
3. Rule 57-T which is about declaration of capital goods by a person acquiring them, stipulates that, “every manufacturer intending to take credit of the duty paid on the capital goods under Rule 57Q shall before receipt of capital goods file a declaration with the Asstt./Dy. Commissioner having jurisdiction over his factory indicating therein the particulars of the capital goods.” Thus, the declaration required to be filed is the “particulars of the capital goods”. The impugned order has taken excise classification at sub-heading level as ‘particulars’ of capital goods and has denied credit noting that excise classification in the purchase invoice is different from excise classification given in the declaration. Therefore, the issue for consideration is whether the ld. Commissioner was right in treating excise classification as ‘particulars’ of capital goods.
4. The Rule does not mention ‘excise’ particulars. It only mentions ‘particulars’ of goods. Particulars of any goods can mean their commercial name, specifications, etc. That is to say, what is particular or special or unique to any goods, so that it could be made out from other goods. Therefore, there was no warrant to hold that ‘particulars’ of goods are excise particulars. The view taken in the order would also introduce avoidable uncertainties into the system of modvat credit, A buyer is in no position to authoritatively determine the excise classification of goods it purchases. That would be done only by the seller and his jurisdictional excise authorities. In such a situation, the Rule cannot caste the burden on him to declare the excise classification.
5. Clearly, the view taken in the order is illegal and unreasonable. The order is set aside and the appeal is allowed with consequential relief, if any, to the appellant.
Order dictated & pronounced in open Court on 3-3-2006.