S. Kalyanam, Member (J)

1. This appeal is directed against the order of the Collector of Central Excise (Appeals), Madras dated 30-3-1990 under which he has dismissed the appellant's appeal on the ground that the appellant should have filed an appeal against the letter of the Superintendent of Central Excise (Tech.), Bangalore dated 18-5-1989 rejecting the appellant's claim to take Modvat credit in terms of Rule 57H in respect of the input lying in stock immediately preceding the date of filing of the declaration under Rule 57G.

2. Shri Shanmuga Sundaram, the learned Consultant for the appellant at the outset submitted that the competent authority to allow or disallow Modvat credit is the Assistant Collector as mentioned in Rule 57H of the Central Excises and Salt Act, 1944. When the appellant sought to take Modvat credit on the inputs lying in stock after filing the necessary declaration before the appropriate authority the Superintendent of Central Excise by his letter dated 27-4-1989 directed the appellant to produce before the Assistant Collector of Central Excise documents evidencing payment of duty, which the appellant did. However, all of a sudden the Superintendent vide a letter dated 18-5-1989 purportedly exercising the power of the Assistant Collector gave his own interpretation on the connotation of the word "immediately" occurring in Rule 57H and denied the appellant Modvat Credit. Thereafter the appellant made a representation to the Superintendent and the Superintendent replied vide his letter dated 21-9-1989 stating that the issue cannot be re-opened against which the appellant preferred an appeal before the lower appellate authority resulting the rejection of the same in the impugned order. It was contended that the Assistant Collector is the competent authority to allow or disallow Modvat credit under Rule 57H and as such the first communication dated 18-5-1989 of the Superintendent is ab initio void and non est in the eye of law. No order passed by the Assistant Collector has been served on the appellant regarding disallowance of Modvat credit under Rule 57H. It was, therefore, submitted that the impugned order itself has to be set aside in the above circumstances.

3. Heard Shri Gregory, the learned SDR.

4. We have considered the submissions made before us and gone through the records. Under Rule 57H, the Assistant Collector is the only competent authority to allow and disallow Modvat credit. The Superintendent of Central Excise has no authority or jurisdiction. Therefore, the purported exercise of power by the Superintendent by his communication dated 18-5-1989 is void. Apart from that the wording of the letter dated 18-5-1989 would prima facie indicate that it is an order of the Superintendent on the direction of the Assistant Collector. This letter does not give rise to any legal consequence and non est in the eye of law and without jurisdiction. No appeal could be filed against the same. We, therefore, in the above circumstances set aside the impugned order for the reasons stated above. We direct the Assistant Collector to consider the appellant's eligibility to Modvat credit in terms of Rule 57H in accordance with law. Ordered accordingly.

V.P. Gulati, Member (T)

5. I observe that under Rule 57H the Assistant Collector has been specifically mentioned as the authority for allowing Modvat credit in respect of the inputs which were lying in stock before filing the declaration. The appellant on the direction of the Superintendent submitted all the necessary data required for obtaining such a permission to the Assistant Collector and the Assistant Collector also gave a personal hearing to the appellant. However, the communication that emerged out of this exercise was that of the Superintendent dated 18-5-1989. Under this communication the Superintendent merely stated that he has been directed to inform the appellant that the Modvat credit could not be allowed as requested for. Inasmuch as the Assistant Collect