ORDER
Smt. Archana Wadhwa
1. Modvat credit of Rs.1,15,560/- has been denied to the appellants on the ground that the appellants has been availed on the side beam and cross beam classifiable under heading 7325.90 without declaring the same under the provisions of Rule 57G.
2. The contention of the ld.Advocate,e Shri B.J.Mookerjee, appearing for the appellants is that initially a declaration was field by them on 20.12.95 in the Office of the Assistant Commissioner declaring steel castings and classification was shown as 7206.09 declared in the declaration was not a correct heading inasmuch as the same belongs to ingots and not to steel castings. The correct heading under which the steel castings are classifiable is under heading 7325. He agrees that there was a mistake on their part of which was rectified by them vide their subsequent letter dated 13.11.96. He submits that the side beam and cross beam received by them during the month of June and July, 1996 were classifiable under heading 7325.90 as is evident from the invoices issued by the suppliers. Inasmuch as steel castings falling under heading 7325.90 (though initially heading shown was 7206 but subsequently amended)were declared by them, they were rightly entitled the benefit of modvat credit. He also drawn my attention to the show-cause notice issued on 13.11.96 proposing to disallow the credit on the alleged ground that a dated acknowledgment of the declaration was not received by the proper officers before availing the credit. He submits that they took a plea before the Assistant Commissioner that a proper receipt of filing was obtained by them and the dated acknowledgement as and when issued would related back to the date of filing of declaration. He submits that even till date no formal acknowledgment has been issued by the assistant Commissioner. However, the impugned order has been passed in on a ground together different then the one alleged in the show-cause notice inasmuch as the Assistant Commissioner has observed that no declaration was filed at all.
3. I have heard Shri A.K.Chattopadhyay, ld.JDR for the Revenue. He submits that initially declaration filed by the appellants declared the inputs as steel castings classifiable under 7206 whereas the credit has been availed by him in respect of side beam and cross beam classifiable under heading 7325. As such, the credit has been rightly denied to the appellants.
4. After considering the arguments advanced from both the sides, I find that the appellants have admittedly filed the declaration on 20.12.95 declaring the steel castings as one of their input. The heading shown against the said steel castings as 7206.09 can only the considered as an error on the part of the appellants inasmuch as the sad heading does not belong to the steel castings. Steel castings are appropriated classifiable under heading 7325.90 which heading covers the goods in question also as is evident from supplier’s invoices. This mistake was also rectified by them though at quite late stage vide their letter dt.13.11.96. As such, I find that this is strictly seeking not a case of non-filing of declaration.
5. In any case, I find a lot of force in the appellants’ submissions that the impugned order has been passed by the asstt (sic) causes notice. A reading of the show-cause notice issued on 13.11.96 shows that the ground for proposed rejection of modvat credit was not obtaining of dated acknowledgment of their modvat declaration from the Competent Authority. It is admitted by the original adjudicating authority that a declaration was filed on 20.12.95, but there was not formal acknowledgment of the same. If the proper officer does not issue acknowledgment even after a lapse of long period, the assessee cannot be expected to suspend his manufacturing activities or not to avail modvat credit. It is informed by the appellants that even till date, no such acknowledgment has been issue by the Asstt.Commissioner. It is not understood as to how the department can put claim on the assessee for non-action on the part of the Departmental officers. Otherwise also the acknowledgment as and when issue has to relate back to the date of filing the declaration. In any case and in any view of the matter, I find that the impugned orders are based upon altogether different allegations then those contained in the show-cause notice.
6. For the above reason, I set aside the impugned order and allow the appeal with consequential relief to the appellants in accordance with law.
Dictated and pronounced in the open Court.