Customs, Excise and Gold Tribunal - Bangalore
Rpg Cables Ltd., Mysore vs The Commissioner Of Central Excise, ... on 24 October, 2001
Equivalent citations: 2002(79)ECC699
JUDGMENT
S.S.S. Sekhon
1. This appeal is against the order of the Commissioner (Appeals) who found that
(i) Whereas modvat credit was availed in September, 95 on two invoices which was clearly after 6 months of the issue of the invoice as provided under Rule 57G read with notification No. 25/95 and there has no authority that the Asst. Collector to grant any relaxation of this 6 months period. Therefore permission granted by him in Sept. 95 which was after 6 months from the date of issue of invoice and disallowance of credit of Rs. 16,157/- and Rs. 1930 was not correct.
(ii) He also found that Sl.No. 13 of the Annexure to show cause notice was an admitted case by the appellant that credit of Rs. 54,474 was obtained and availed on their 'own invoice' which was issued in the name of their buyer, the provisions of Rule 173H or 173L or 57F were not followed. The submission of the appellants that the clearances was under Rule 57F to their buyers and goods were then received back was not permitted as covered by any Rules for availment of credit. That could not therefore be considered as procedural lapse, which can be condoned. Hence credit was denied.
2. After hearing the both sides and considering the submissions, I find that-
a) Credit on two invoices both dated 20.2.95 for Rs. 16,157 and Rs. 1930 was eligible to the appellant on 20.2.95 and thereafter upto 19.8.95. The credit in part-1 of the relevant register had been taken by the appellants, as per statement made today, in February 95 itself. They further submitted that they had applied to the Asst. Commissioner on 15.6.95 since the duty paying invoice on which credit can be availed was misplaced / lost and they could not locate it. Therefore they sought the permission of the Asst. Commissioner to grant them credit in these two cases which was permissible. The Asst. Commissioner after considering their request has granted them permission to avail the credit on 14.9.95 and the letter was received by them on 29.9.95 and consequently they took the credit in part - 2 on 1.10.95.
(b) Since credit on these two invoices (supra) was availed in part-1 in February 95 and the money credit on duties has not been taken within the period of 6 months appropriate Rule 57G embargo was raised. However this embargo will not arise, in such cases where the document evidencing the payment of duty are lost/misplaced and the appellant is following the prescribed procedure for availing the benefit of credit on other documents. Since the duty availment permission, as granted on the original invoices would indicate, that the said invoices became the prescribed document only on 29.9.95; the credit was timely taken on 1.10.95 well within 6 months from the date. I have considered the submissions of the SDR relying on the decision in the case of Kusum Ingots & Alloys Ltd reported in 2000 (120) ELT 214 wherein it was held that availment of credit crucial event determining the admissibility of credit and not the act of taking credit. Rule 57A amendment provides that credit after 6 months of the date of issue of any document will not be eligible. I find that in this case the documents which entitle the appellant to avail the credit was the permission of Ass.t Collector communicated to them on 29.9.95, and not the original lost, duplicate invoice. Therefore there was no delay on the part of the appellant in availing credit to attract the embargo of Rule 57G. Credit would be eligible.
(c) As regards the eligibility of credit on the inputs received by them on their invoice No. 2003 dated 18.9.99 for credit amounting to Rs. 57,474., I find that the said inputs were received by them earlier and credit of the like amount taken. The said credit was reversed on 18.9.95 and the goods were sent back to their supplier/seller./ This seller has been mistakenly recorded in the Commissioner's order as 'buyer'. The said 'seller/supplier' of the goods in alleged to have repaired or reconditioned the goods and thereafter sent the same lot back without following 173H to 173L or 57F procedure. Credit of reversed amount of modvat credit made on 18.9.95 i.e. Rs. 57,474 was again taken on 16.1.95 The said movement has not been considered as movement under rule 173 L or 173H or 57F by the department. However the appellant have submitted before me, that the inputs were reconditioned/repaired and thereafter sent back to them by their seller. Since this part of the appellant's story is not admitted by the Revenue and if we remove this cover story then the case would be a simple case of removal of inputs as inputs under Rule 57F1(ii) and thereafter the consignee of the case on an invoice of under Rule 57F1 (ii) not receiving the goods for what ever reasons and receipt back of the same to the manufactures (consignor) who has issued 57F1(ii) invoice at the first place who has availed credit once again of the duty shown as to have been paid on the 57F1(ii) invoice. There is no bar that such 57F(ii) invoice can not be a prescribed document to avail credit. I do not find therefore any reason to deny the credit of Rs. 54,474 to the appellant in this case. I find force in the submission of the SDR that the removal of inputs as such were to follow particular procedure as prescribed under the goods, however not following the procedure in as much as classification on price lists intimation, etc was not followed can lead to penal consequences on the appellant but not denial of modvat credit if it is eligible. I find that no penalty has been imposed in this case. Therefore there is no case for denial of credit.
3. In view of my findings, the order impugned are set aside and appeal allowed with consequential relief.
(Pronounced and dictated in the open court).