ORDER
S.L. Peeran, Member (J)
1. These two appeals arise from common Order-in-Appeal No. 146, 147/97 dated 4.7.1997 upheld the Order-in-Original rejecting two declarations filed by the appellants for availing capital goods Modvat credit filed on 3.11.1995 for Rs. 1,98,089/- for the period from 6.4.1994 to 27.7.1995 and for Rs. 19,87,814/- for the period 31.3.1994 (to) 26.7.1995. It is the appellants contention that they had filed D-3 intimation with the Superintendent but because of the infancy of the capital goods scheme they failed to file 57T(1) declaration with the Assistant Commissioner which they filed only on 3.11.1995. It was pleaded that filing of declaration was only a procedural requirement and for the lapse in not complying with the substantial benefit of Modvat credit should not be denied. The question before the Commissioner (Appeals) was as to whether the capital goods credit should be extended by accepting the declaration filed under Rule 57T(1) beyond the time limit prescribed under the rule or not. The Commissioner has noted that the appellants are the manufacturers of cotton yarn and polyester cotton blended yarn and they received capital goods into their factory during the period 31.3.1994 to 26.7.1995 and as and when the goods were received they sent D-3 intimation to the Range Superintendent, but they did not file Modvat declaration under Rule 57T(1). According to them, the erection of plant and machinery was entrusted to a contractor and only after completion of the work they could file the declaration i.e. only on 3.11.1995 and accordingly they filed two declarations for availing the credit. They submitted that D-3 declaration filed before the Superintendent is deemed to be the declaration filed in time. They had relied on the Judgment of the Tribunal rendered in the case of Roche Products Ltd. v. CCE as , wherein it has been held that the substantive benefit conferred under the scheme should not be denied on procedural lapse. Further reliance was also made in respect of the Judgment of Tribunal rendered in the case of Sanjivani (Takali) S.S.K. Ltd. v. CCE as , wherein the Tribunal held that the declaration filed with the jurisdictional Superintendent instead of Assistant Commissioner should be accepted in terms of the Board’s Circular No. 267/1/87-CX-VIII dated 5.2.1987. Further reliance was made on the Judgment rendered in the case of Geeta Steel Rolling Mills as , wherein it has been held that for non-filing of Modvat declaration on the ground of eligibility to Notification No. 202/88 should not deprive the assessee the benefit of Modvat credit. Further reliance was also made on the Judgment of Tribunal in the case of Transformers & Electricals Kerala Ltd. as , wherein it has been held that exemption is not to be denied for non-compliance of procedural requirements when substantive conditions are shown to have been complied and further’ Held that it is not necessary to insist upon the compliance with other conditions which are clearly procedural in nature. In this regard, reliance has been placed on the Judgment of Mangalore Chemicals & Fertilisers v. DC as . The Commissioner on consideration did not agree and has opined that lapse is not a procedural one. He has held that not filing of application with the Assistant Commissioner is not a procedural lapse.
2. The contention of the learned advocate is that all the details which are required for filing the declaration have already been submitted in D-3 declaration itself and therefore, it satisfies the requirements of the law. The subsequent declaration filed was after the installation of the capital goods and therefore, the subsequent declaration is to be treated as mere formality. It is his contention that a format has not been prescribed and the initial declaration given was not to have been rejected. It is his contention that the declaration and availment of Modvat credit of capital goods stands on a different footing than in respect of the Modvat credit taken on inputs, as there has to be maintenance of registers and verification of the duty paying documents including the quantum of duty paid on the inputs which has to be set off against the final payment. The learned Counsel submits that in the present case such a situation does not arise, as in the case of capital goods there is only one time availment of benefit and that benefit is on the basis of invoices of the capital goods. It is his contention that there is no dispute on the erection of the capital goods or on the quantum of the amount but it is only on the procedural lapse of not filing the declaration under Rule 57T(1). It is his submission that D-3 intimation and declaration filed thereafter are to be read together, then it satisfies the law, therefore, the lapse is in the nature of procedural one and not a substantive one.
3. The contention of the learned Counsel was seriously disputed by the learned D.R. on the plea that filing of a declaration under Rule 57T(1) is a substantive provision of law and mere intimation in D-3 with regard to receipt of goods is not sufficient. As the declaration has been filed beyond the stipulated period, therefore, the Assistant Commissioner has no power to condone the same.
4. On a careful consideration of the submissions and on examination of the issue, we notice that the appellants have filed D-3 intimation to the Range Superintendent and said filing has to be accepted in terms of the Board’s Circular cited above and the Judgment of the Tribunal in the case of Sanjivani (Takali) S.S.K. Ltd. cited supra. The finding of the Commissioner that the declaration ought to have been filed only before the Assistant Commissioner is not sustainable. The other point raised is that the declaration filed after completion of the work i.e. on 3.11.1995 is beyond the time is required to be treated as a procedural one. Rule 57T(1) requires the manufacturers intending to take credit of duty paid on the capital goods under Rule 57Q before receipt of the capital goods, to file a declaration with the Assistant Commissioner having jurisdiction indicating therein the particulars of the capital goods etc. In this case, there is no dispute about filing of such declaration which gives all the particulars and details. The Commissioner has not accepted this D-3 declaration as declaration under Rule 57T(1). On examination of this declaration, we are of the considered opinion that this D-3 declaration is in fact, a declaration required to be filed under Rule 57T(1). There is no prescribed format therefore, so long as all the particulars required under Rule 57T(1) has been furnished, then the appellants are deemed to have complied with the provisions of law. The subsequent-declaration given on 3.11.1995 to the Assistant Commissioner was with regard to the installation of capital goods and the same being put to operation. The authorities have proceeded to consider the subsequent declaration filed on 3.11.1995 as the statutory declaration filed under Rule 57T(1) and held that the same have been filed beyond the prescribed time, as the goods were received as early as 31.3.1994 and the rule provides only three months time for filing the declaration and that there was a delay of 6 days to one year and 95 days. On a careful consideration of the facts and circumstances of the present case, we are of the considered opinion that D-3 intimation filed with all the material particulars is deemed to be a declaration satisfying the provisions of Rule 57T(1) and subsequent declaration was only a formal intimation or in the nature of affirming the earlier declaration. The D-3 intimation having been in the nature of declaration, therefore, it has not to be considered as having been filed in time. It is not the case of the revenue that the subsequent declaration gives different details than the one given in the D-3 intimation and that they are not contradictory to each other. We also notice that the Tribunal in the case of Suryalata Spinning Mills Ltd. v. CCE vide Final Order No. 601/99 dated 17.3.1999 (SRB) has in a similar circumstances held that particulars furnished in the format and declarations disclosed that the capital goods had been received and installed and that they were used in the manufacture of the final product and hence it was held that the information contained in the declaration filed were sufficient for the department to have caused such a verification to satisfy themselves about the bona fides of the capital goods and the Modvat credit involved therein. It was further held that when the position is such then in that case the intimation submitted under Rule 57T(2) after the receipt of the capital goods as soon as possible, is clearly served by these declarations. It was further held that ‘it is not material whether you call such communication declarations or intimations, what is material is whether the purpose for which the rule requires such information to be made available to the departmental authorities is served or not’. The Tribunal accepted the details furnished in that case as sufficient compliance of the rule.
This final order of the Tribunal applies to the facts of the present case. Therefore, in these circumstances we have to hold that there is a substantive compliance of the provisions of law and hence in the light of the judgements cited, the plea of the appellants is required to be accepted by allowing the appeals. Ordered accordingly.
(Pronounced in the open court on 12.10.1999).