Dayal
(Gen. Manager - Indirect Taxation)
(3434 Points)
Replied 06 November 2007
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
New Delhi -- Bench-NB(S)
Shri K.C. Mamgain, Member (T)
JCT Ltd.
Versus
CCE, Jalandhar
Appeal No. E/587/2004-NB(S)
[Arising out of Order-in-Appeal No. 673/CE/JAL/2003 dated 29.10.2003 passed by the Commissioner of Central Excise (Appeals), Jalandhar (Headquarters at Chandigarh)]
Final Order No. 1833/2004-NB(S), dt. 14.12.2004, Certified on 5.1.2005
Modvat Credit
Mono Ethylene Glycol -- Goods received in the factory of the appellant were used in the manufacture of the final product eligible for Modvat credit.
Modvat Credit
Mono Ethylene Glycol -- Once the manufacturer has informed about the loss of the duplicate copy and he is availing the credit on the basis of the original invoice, the claim cannot be denied on the basis that the loss was not in the course of transportation of the inputs.
Appeal allowed
PRESENT :
Shri Rupendra Singh, Adv. for the appellant.
Shri S. Bhatnagar, JDR for the respondent.
Cases Cited :
1. CCE, Chandigarh v. Markfed Cement Pipe Plant, 1996 (084) ELT 81 [Para 2]
2. CCE, New Delhi v. Avis Electronics 2000 (069) ECC 0272 (LB) [Para 3]
3. Dhaulagiree Polyolefins (Pvt.) Ltd. v. CCE, Calcutta-II, 2002(05)LCX0056 Eq 2002 (147) ELT 0843 (Tri.-Kol.) [Para 2]
4. JCT Ltd. v. CCE, Jalandhar, Final Order No. A/1043/2004-NB(SM) dated 30.6.2004 [Para 2]
Per : K.C. Mamgain
The issue involved in this appeal is whether Modvat credit is available to the appellants on the original copy of the invoice when duplicate was lost.
2. Shri Rupendra Singh, learned Advocate, appearing for the appellants pleaded that the duplicate copy of the invoice pertaining to the goods i.e. Mono Ethylene Glycol which were being transported by the tanker, was lost on the way. The lower authorities have found fault with the FIR which was lodged at Delhi on the ground that the goods were being transported from Surat to Hoshiarpur then why FIR was lodged at Delhi. The other ground for denying the Modvat credit was that the Assistant Commissioner stated in his order that the appellants; took credit on 30.6.99 and applied for availment of credit on 27.7.98 enclosing copy of affidavit dated 22.6.98 of the driver of the vehicle. Shri Rupendra Singh, learned advocate, pleaded that on coming to the notice of the loss, FIR was lodged immediately at Delhi and Superintendent of the Range was also informed on 22.6.98 about the loss of duplicate copy. Subsequently, they applied to the Assistant Commissioner on 22.7.1998 informing that they have taken credit as there is restriction under Rule 57G(5) of the Rules for claiming credit within 6 months from the date of the issue of the duty paying documents. He pleads that there is no dispute regarding receipt of the goods in the factory and utilization of the same in the manufacture of the finished products. Therefore, credit should not be denied to them. He relied on the following decisions and pleaded that the credit should not be denied to the appellants.
(1) Dhaulagiree Polyolefins (Pvt.) Ltd. v. CCE, Calcutta-II, 2002(05)LCX0056 Eq 2002 (147) ELT 0843 (Tri.-Kol.).
(2) CCE, Chandigarh v. Markfed Cement Pipe Plant, 1996 (084) ELT 81.
(3) M/s. JCT Ltd. v. CCE, Jalandhar, Final Order No. A/1043/2004-NB(SM) dated 30.6.2004.
3. Shri S. Bhatnagar, learned JDR, appearing for the Revenue pleaded that the lower authorities have given finding that the Assistant Commissioner was not satisfied about the loss of the duplicate copy as he was informed on 22.7.98 and the copy of the affidavit of the driver does not give vehicle number. He relied on the decision of the Tribunal in the case of CCE, New Delhi v. Avis Electronics Pvt. Ltd., 2000 (069) ECC 0272 (LB) : 2000 (117) ELT 571, wherein it was held that a combined reading of Rule 52A(3), first proviso to Rule 57G(2) and Rule 57G(2A) makes it clear that a manufacturer could take credit only on the basis of the duplicate copy of the invoice and where the duplicate copy has been lost in transit, he could take credit on the basis on the original copy of the invoice provided he satisfies the Assistant Collector about the loss of the duplicate copy. He stated that the Trade Notice issued by the Chandigarh Collectorate was not followed by the appellants and hence the Assistant Commissioner was not satisfied about the loss of the duplicate copy.
4. Shri Rupendra Singh, learned Advocate referred to para 10 of the decision of the Larger Bench in the case of CCE, New Delhi v. Avis Electronics Pvt. Ltd. (Supra) wherein it was held that "In appeal No. E/410/98-NB, manufacturer requested that they be allowed to take credit on the basis of the original copy of the invoice on the ground that the duplicate was lost. This claim was negatived on the ground that if the duplicate was lost during transportation, immediate intimation should be given and that no affidavit of the transporter was filed. As stated earlier, this stand of the jurisdictional Asstt. Collector is not warranted by law. Since the manufacturer has informed of the loss of the duplicate copy and stated that he is availing the credit on the basis of original invoice, his claim cannot be denied on the basis that the loss was not in the course of the transportation of the inputs. Consequently, the appellate authority was justified in reversing the finding arrived at by the adjudicating authority. We do not find any ground to interfere with the order-in-appeal at the instance of the Revenue." Therefore, he pleaded that in this Larger Bench decision, it is made clear that once the manufacturer has informed about the loss of the duplicate copy and he is availing the credit on the basis of original invoice, his claim cannot be denied on the basis that the loss was not in the course of the transportation of the inputs.
5. I have carefully considered the submissions made by both the sides. I find that there is no dispute in this case that the goods were received in the factory of the appellants and these were used in the manufacture of the find products. These goods were also eligible for Modvat credit. The only dispute is that since the information was given to the Assistant Commissioner after amount 22 days from the date of taking the credit and the affidavit filed by the driver does; not show vehicle number, therefore, the credit was denied. I find that in the appeal petition it is mentioned that appellants followed the trade notice 111/94 of Chandigarh Commissionerate as they informed the range Superintendent about the loss of duplicate copy of invoice on 22.6.98. They sought permission of Assistant Commissioner for credit on 22.7.98. Affidavit regarding loss of duplicate copy of invoice was filed. I find the affidavit shows the invoice number which was lost. If the Assistant Commissioner had noted that vehicle number is not shown in affidavit which could have been included then he could have called for fresh affidavit showing vehicle number. Therefore, after considering the facts and circumstances of the case and the principle laid down by the Tribunal in various decisions relied on by the appellants and also the decision of the Larger Bench of the Tribunal in the case of CCE, New Delhi v. Avis Electronics Pvt. Ltd. (para 10), I do not find any reason to disallow credit to the appellants. I, therefore, allow the appeal.
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Equivalent 2005 (192) ELT 0571 (Tri.- Del.)
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