fC3"^ '^^,J- ^. ^ ../-.^]^?'\ i'teNfj8"""! ^ ^. 1-lpn'bleShr! DhirendraMishra& R.N. Chandrakar, JJ HoR'bis Shri R.' TaxCaseNo.16/2006 Union of India through Commissioner, Centra! Excise and Customs, Central Excise Bhawan, Dhamtari Road, Tikarapara, Raipur (CG) 492-001 Versus M/s. Sunil Steels, 560, Urla Industrial Complsx, Raipur (CG) Aopeal under Section 35-G of the Centrai Excise Act, 1944 Present: Shri Bhishma Kinger, counsei for the appeiiant. Shri Deynath Verma with Shri Raja Sharma, counse! for the respondent. Orai Judnment (Passed-orTl6t1rofMarch, 2011) The appellant/Revenue has preferred this appeai against the impugned order dated 02,03.2006 of the Customs, Excise and Service Tax Appellate.Tribunal (for short the 'Tribunal'), New Delhi under Section 35-G of the Central Excise Act, 1944 (for short the 'Act') on the foliowing substantiai questions of.taw:- A. 'Whether the learned Appellate Tribuna! has acted according to law in allowing the appeal of the respondent? B. Whether the learned Appellate Tribunal has acted without arriving at a finding that the said order was in any way in breach of law, Rules or regulations or in any wa'y iliegal? C. Whether or not deemed Modvat Credit amounting to Rs.3,87,974/- availed by the ,.^ ; respondent on inputs used in the manufacture of .<^ -.^"s^ ~^. .jiP^SSt ^ ff^m^ IlBS^^J <s.o -^- V-;", ^\ ^, final products is based on the atlegation of non- receipt of the relevant inputs? D. Whether or not the respondent totaliy failed to produce any evidence of receipt of impugned goods by the respondent jn their factory and consumption in the manufacture of excisable goods? E. Whether or not the respondent has fuffilled the conditions for eligibitity of deemed credit? (2) Briefly stated, the facts of the case are that appellant was served with a show cause notice (Annexure A-2) requiring them to show cause as to why the deemed credit wrongly availed should not be disallowed and recovered from them and penatty under Rute 173Q ofthe Central Excise Rules, 1994 should not be imposed on them as the credit has been availed without accounting the inputs in RG-23 Part-1 as prescribed under the Modvat Rules. The respondent resisted the demand and the adjudicating Authority held that there was only procedurat lapse on the part of the appellant and only for non-fiiling of part-i register, credit should not be denied. (3) The Commissioner (Appeais) allowing the appeal of the Revenue held that fiiiing up part-1 register of the account was mandatory and in the absence of that, description of goods, quantity of goods, credit etc cannot be known and accordingly reversed the order and denied the Modvat credit of about Rs.4 lacs and imposed penalty of Rs.1 lac. However, the Tribunal allowing the appeal of the assessee, set aside the order of Commissioner (Appeals) and held that clerical failure in filiing of part-t register is no ground for denying credit and for imposing penalty on the assessee. Referring to various decisions of the Tribunal, it was observed that the Tribunal had been consistentiy taking the above view from1998. (4) Shri Kinger, learned counsel for the appellant submits that the filiing account of inputs in RG-23A Part-1 is a substantive statutory requirement as the same indicates receipt, consumption and stock of ''^. ^c. A '4' if -3>- inputs with the assessee. It is settled law that receipt of goods in the factory, the duty paid nature of the goods and consumption of goods for manufacturing of excisable goods are basic and mandatory requirement for availing Modvat credit. Since the respondent failed to prove the receipt of goods and consumption in their factory and also failed to prove to establish duty paid nature of the goods, the Modvat credit was rightly denied to the assessee and the Tribunal was not justified in allowing the appeat by setting aside the order of Commissioner (Appeals). (5) On the other hand, learned counsel for the respondent/assessee would argue that from bare perusal of the show cause notice, it would be evident that credit was to be denied only on technicai ground of non-filiing of RG-23 Part-1 register as prescribed under the Modvat Rules though from perusal of the chart appended with the show cause notice, it would be evident that while availing Modavt credit, invoices and chatlan were duiy produced. Issue involved in this appeai has already been considered and decided by the Tribunal in the matters of C.C.E. Meerut Vs. Subros Ltd reported in 1998 (100) ELT 546, A.S.W.M. Spinning Mills vs. C.C.E., Jaladfiar reported in 2005 (182) ELT 217 and Timex Watches Ltd. vs. C.C.E., Nolda reported in 2003 (158) ELT 494 wherein, 't has been he!d that eiigibility of credit is in no way affected by the non- filling of particutars in part 1 register. There is nothing on record to show that the decisions rendered have been challenged by the Revenue and thus the Revenue has accepted the decision of the Tribunal. (6) Heard learned counsel for the parties. Perused the record as also the impugned order. Indisputably, the issued involved in this appea! has already been adjudicated by the Tribunal and the issue stands settied in favour of the assessee and against the Revenue. We are of the consjdered opinion that where the Department has accepted the decisions of the Tribunal in the matters involving identical issue wherein, it has been held that eligibility of credit is in no r' 'ssv'" .-y tf- \»! v\b way affected by the non-fiiling of particuiars in part-1 rggister, Revenue cannot be permitted to take a different view in the present case. (7) We find no illegality or infirmity in the impugned order passed by the Tribunal involving any substantiat questions of iaw as proposed by the appeliant. (8) We find no substance In this appeal. The same deserves to be and is accordingty dismissed. Sd/- Dhis-endra Mishra Judge SA'- R.N. Chandrakar Judge Priya