Custom, Excise & Service Tax Tribunal
M/S. R.B.Polysacks vs Cce, Indore on 31 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal No. 1480/2000-EX[SM]
[Arising out of Order-In-Appeal No. 213/CE/Appl/BPL/2000 Dated 11.02.2000 passed by CCE, Indore]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. R.B.Polysacks Appellant
Vs.
CCE, Indore Respondents
Coram: Honble Ms. Archana Wadhwa, Judicial Member Appearance:
Shri Manish Sharan, Advocate for the Appellant Shri B.B. Sharma, AR for the Respondent Date of Hearing: 31.01.2014 FINAL ORDER NO. 50434/2014 Per Ms. Archana Wadhwa:
The Adjudicating authority and the first appellant authority disallowed Modvat credit of Rs. 1,38,462/- on inputs to the appellants and imposed on them a penalty of Rs. 25,000/-.
2. The Modvat credit in question was taken on 19.11.94 on the strength of original copy of invoice dated 31.10.94. The department, by show-cause notice, proposed to disallow the credit on the ground that original copy of invoice was not a valid modvatable document under Rule 57 G of the Central Excise Rules, 1944. In reply to the show-cause notice, the appellants stated, inter alia, that duplicate for transporter copy of the invoice was misplaced at the suppliers end. The Asstt. Commissioner, who adjudicated the dispute, found that the above explanation of the party was not sufficient for allowing Modvat credit on the strength of the original copy of invoice and, further, that the party had not produced any evidence to show that the duplicate copy had been lost in transit. The adjudicating authority, therefore, disallowed the Modvat credit and imposed a penalty of Rs. 25,000/- on the assessee. This decision was upheld by the Commissioner (Appeals) in the appeal preferred by the assessee. In the appeal, the appellants have stated that they had filed an application with the Asstt. Commissioner on 11.11.94 for permission to take credit on the strength of the original copy of invoice and that the Asstt. Commissioner passed the order of adjudication of the show-cause notice without considering the said application. It is their further grievance that the Commissioner (Appeals) also failed to consider the pendency of the application dated 11.11.94 with the lower authority.
3. The Tribunal, while disposing of the appeal, upheld the impugned orders on the ground that the Assistant Commissioner has to be satisfied about loss of duplicate copy of invoice in transit and in the absence of the same credit of duty paid on the input shall not be admissible on the strength of the original copy of the invoice. Accordingly the appeal was rejected, upholding the confirming the demand of duty, reducing the penalty to Rs. 15,000/-.
4. The said order of the Tribunal being final order No. A/1757/01/NB (SM) dated 29.11.2001 was challenged before the Honble High Court of Madhya Pradesh. The Honble High Court vide its order dated 02.04.2003, remanded the matter to Tribunal for fresh decision, with a direction of consider the letter of the assessee filed on 11.11.94.
Accordingly, I have heard both the sides duly represented by Shri Manish Sharan learned Advocate and Shri B.B. Sharma appearing for the respondent.
5. The appellant have placed the said letter dated 11.11.94 addressed by the appellant to the Assistant Commissioner submitting that the transporter has misplaced the duplicate for transporter copy of the invoice and they may be allowed to take credit on the strength of the original copy of invoice.
I find that there is no dispute about the receipt of the inputs and their duty paid character and further utilizations in the manufacture of final product. The denial of Cenvat credit on the procedure ground that the same has been availed on the basis of the original invoice instead of duplicate invoice meant in the transporter, cannot be appreciated. As such in the absence any doubt on the contrary, I set aside the impugned order and allow the appeal with consequential relief to the appellant.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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