ORDER
K.D. Mankar, Member (T)
1. The appellant’s appeal is directed against the denial of modvat credit of Rs. 8,781/- and penalty of Rs. 1000/-. Brief facts mentioned in the show cause notice are as under: –
“On scrutiny of the RT-12 returns fited by the said assessee, it appeared that they had reversed an amount of Rs. 8,78l/- equal to 8% advalorem on the clearances of the goods other than those specified under Section XV of the Central Excise Tariff Act, 1985 in their PLA/RG-2 3-A-Pt.II/RG-23-C-Pt. II vide different entries as envisaged under Rule 57CC of the Rules as amended and ejfective from 01/03/97.
From the subsequent RT-12 returns filed by the said assessee it was observed that they have taken the credit of the amount which has been debited by them in RG-23-Pt.II in view of Notification No. B/42-1/97-TRU dated 10/03/1997 vide Entry No. 705/706 dated 06/09/97.
From the above facts it appeared that the said assessee neither filed refund claim for the above credit nor have obtained any permission from competent authority to regularise such credit and the credit has been taken without having any valid documents as prescribed under Rule 57G (3) of the Rules and therefore have contravened the Provisions of the Central Excise Act, 1944 and Rules made thereunder by availing the modvat credit and which is required to be recovered from them. Therefore, Range Superintendent AR-II, SBY-Alang has issued a Show cause Notice No. AR-II/SBY/D-124/97-98 dated 25/03/98 to the said assessee that why such wrongly availed modvat credit amounting to Rs. 8,781/- should not be recovered from the under Rule 571 of the Rules read with Section 11A of the Central Excise Act, 1944 Q of the Rules.
The demand was confirmed by the Assistant Commissioner and the Appellate authority confirmed the order of the Assistant Commissioner. Hence this appeal.
2. The appellants had placed reliance on the decision of the Tribunal in the case of Priya Blue and Industries Ltd. v. CCEC, Rajkot. On going through the said judgment, it is noted that, the Tribunal had already decided the law point in holding that the payment of 8% ad valorem is not modvat credit. It had no relation to duty paid on the input or capital goods, levied on their manufacture in accordance with Section 3 of the Act and at rate specified in the tariff. The debit entry was therefore not a debit of modvat credit nor its subsequent re-credit can be termed as an act of taking modvat credit.
3. Consequently, the denial of credit was not supported by the law and the appeal deserves to be allowed. Accordingly, the appeal of the appellant is allowed and the orders of the lower authorities is set aside.
(Operative part pronounced in Court)