Customs, Excise and Gold Tribunal - Tamil Nadu
Sri Vasavi Soft Drinks Pvt. Ltd. vs Commissioner Of Central Excise on 28 January, 1998
Equivalent citations: 1998(60)ECC117
ORDER
T. P. Nambiar, Member
1. This appeal is filed by the appellant against the order passed by the CCE(A) in-order No. 271/96 dated 16.12.96. Under the impugned order the CCE(A) held that this is a case where the appellant availed Modvat Credit on the strength of original invoice in the month of April 94. He held that legally the appellants were not entitled to avail the Modvat Credit on the strength of original invoice under which the inputs were received. He also held that the question whether the goods were received and used by them for manufacture of their final product is not relevant, as long as the goods were not received under the relevant duplicate copy of invoice which is the statutory input duty paying document on the strength of which Modvat Credit can be taken as per the provisions of Rule 52G and 52A. He also held that by Notification 23/94 dated 20.5.94, Sub-rule 2A to Rule 57G was introduced empowering the AC to allow credit on the strength of the original invoice if duplicate is lost in transit subject to his satisfaction. He held that this does not have any retrospective effect.
2. Shri Loganathan, learned Chartered Accountant appearing for the appellants contended before me that the finding that there is no retrospective effect of the rule is not correct. He in this connection relied upon the following decisions:
(1)1997 (93) ELT 489 and (2)1997 (93) ELT 489.
3. Heard Shri V. Thyagaraj, the learned SDR. He pointed out that since in those cases the duplicates have been lost, the benefit, was allowed. He pointed out that the Notification is only prospective in nature and therefore the appellants cannot be allowed the benefit. He also pointed out that the Miles India case reported in 1987 (30) ELT 641 will apply to the facts of this case.
4. I have heard the submissions of both the sides. It is seen that the decision in the case of Miles India will not apply to the facts of this case in view of the fact that the AC had the discretion to allow the credit either on the strength of the duplicate or on the strength of the original invoice. The Tribunal in the above decisions has clearly held that Notification 232/94 dated 20.5.94 is also retrospective in nature. Therefore, in those cases, the Tribunal remanded the matter to the adjudicating authority to examine this aspect keeping in view the fact that discretion is available for the adjudicating authority for allowing or otherwise of the Modvat Credit on the documents other than the specified documents, in the later decision reported in 1997 (93) ELT 489 the Tribunal also held that it was required of the department to examine the secondary evidence adduced and the matter was remanded back to the original authority to examine the correctness of the claim for misplacement of the duplicate invoice and accord sanction to avail Modvat Credit on the original invoice which on due scrutiny is found to be correlatable to the goods. Therefore, these decisions applies to the facts of the present case. In this view of the matter, I set aside the impugned order and remand the matter to the adjudicating authority to examine the case of the appellants as to why duplicate invoice could not be produced. He shall also examine the correctness of the original invoice and correlate the same with the goods in question and thereafter he shall use his discretion in this matter and dealt with those if granting the credit in accordance with law. The appeal is allowed by way of remand in the above terms.
Dictated and pronounced in the open court.