Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central, Excise, ... vs M/S. Shasun Chemicals & Drugs Ltd. on 15 March, 2001
Equivalent citations: 2001(76)ECC42
ORDER V.K. Agrawal, Member (T)
1. The issue involved in these two appeals filed by the Revenue is whether Modvat credit can be availed of on the basis of certified copies of the Bill of Entry.
2. Shri S. Sudharsan, Ld. DR submitted that as per proviso to Rule 57 G (2), Modvat credit can be availed of only if the inputs are received in the factory accompanied with specified duty paying document; that as the Appellants had not submitted triplicate copy of the Bill of Entry they were not eligible to avail of Modvat credit.
3. Shri K.R. Natarajan, Ld. Counsel, submitted that at no stage the Department has made any charge that the inputs were not received by them under the cover of Triplicate copy of the Bill of Entry (original); that both show cause notice as well as order in original only the plea is of non submission of the original triplicate copy of the Bill of Entry at the time of submission of RT 12 Return,; that the Commissioner (Appeals) has categorically given his findings in the impugned order that "they were in possession of the Triplicate copy of the Bill of Entry at the time of taking credit has not been denied in the impugned order". He further, submitted that subsequent loss of Triplicated copy will not bar them from taking the Modvat credit; that only negligible penalty can be imposed on them for not submitting the original triplicate copy of the Bill of Entry along with RT. 12 Return. He finally, relied upon number of decisions in which it has been held that the substantive benefit Of Modvat credit should not be denied on account of loss of original copy. Some of the cases relied upon by him are Shiva Stampings Pvt. Ltd. vs. CCE, Jaipur reported in 1998 (97)ELT 327 (T); Bombay Goods Transport Association vs. Union of India reported 1997 (77) ELT 521 (Bo,). Reliance has also been placed on the decision of the Larger Bench of the Tribunal in the case of Kamakhya Steels (P) Ltd. vs. CCE, Meerut reported in 2000 (121) ELT 247 (T_LB) wherein the matter was remanded to the Adjudicating Authority to examine the issue regarding non filing of declaration in the light of the amendment to Rules 57 G and 57 T and two circulars of the Board. He contended that in this case also non submission of original triplicate copy of the Bill of Entry along with RT 12 Return is only procedural matter and not required substantively. In reply, the Ld. DR relied upon the decision of the Larger Bench in the case of Grasim Industries vs. C.C.D. where the Modvat credits was disallowed on the strength of original copy of the invoice in the absence of any proof of loss of the duplicate copy of the invoice in transit. He, further, submitted that recently, the Larger Bench in the case of CCE New Delhi vs. Avis Electronics Pvt. Ltd., 200 (117) ECT 571 has held that insistence of duty paying document is not a procedural requirement and when a particular thing is directed to be done in a particular matter it is to be done accordingly.
4. We have considered the submissions made by both sides. The facts which are not in dispute are that at the time of submission of RT 12 Returns the Respondents did not submit the original copy of the triplicate copy of the Bill of Entry. The Ld. Counsel for the Respondents have been emphasising that there is no allegation by the Department that original triplicate copy of Bill of Entry was not received along with the goods. We do not find any substance in his argument. The Department comes to know about the documents for the first time these are submitted along with RT 12 Returns. The Respondents have not brought any evidence on record- in support of their contention that when the inputs were received in the factory these were accompanied with the duty paying documents as specified in proviso to Rules 57 G(2) to show that the goods were received along with duty paying documents as specified in the Rules. We are, therefore, unable to appreciate the findings of the Ld. Commissioner (Appeals) that the Department has not disputed receipt of the goods along with the original triplicate copy of the Bill of Entry. The Larger Bench of this Tribunal in Avis Electronics case, supra, held that insistence on document evidencing payment of duly is not a procedural requirement and the goods have to be received under the documents specified under the Rules. Further, another Larger Bench in the case of Grasim Industries did not allow the benefit of Modvat credit in the absence of any proof about the loss of triplicate copy of the invoice. The decision in the case of Kamakhya Steels P. Ltd. relied upon by the Counsel for the Respondents is not applicable as it was with regard to the declaration filed under Rule 57 G (1) and the matter was remanded for examination in the light of the Board's circular issued. Accordingly, we set aside the impugned order and allow the Appeal filed by the Revenue.
(Order dicated and pronounced in the open court)