Customs, Excise and Gold Tribunal - Bangalore
Finecore Cables (P) Ltd. vs Cce on 20 August, 1997
Equivalent citations: 1998(74)ECR171(TRI.-BANGALORE)
ORDER T.P. Nambiar, Member (J)
1. The present appeal is directed against the order passed by the CCE(A), Bangalore. In terms of that order, he confirmed the order of the AC in denying the MODVAT Credit to the appellants. The appellants in the present case availed of the benefit of MODVAT Credit on the strength of original invoice issued by the depot of M/s Hindustan Copper Limited (HCL) which is a Government of India Undertaking. The case of the appellants is that during the relevant time, August to October 1994, any copy of the invoice/challan was valid for availment of MODVAT Credit because neither in Rule 57E nor in the Notification No. 32/94-CE(NT) and 33/94-CE(NT) both dated 4.7.94, there was any stipulation that duplicate invoice issued by the concerned would be relevant for the purpose of taking the benefit of MODVAT Credit and denial of MODVAT Credit to them is not in accordance with law.
2. Shri Indulal Shah, learned Consultant for the appellants contended before us that there was an amendment to Rule 57H in terms of Notification 64/94-CE (NT) dated 7.11.1994. In order to appreciate the contention of the learned Consultant we reproduce the the amendment which is as follows:
Modvat Rule 57H--Amendment Amend at page 2.72 of 15th Edition and page 2.67 of 16th & 17th Editions of Central Excise Manual 1994-95 In exercise of the powers conferred by Section 37 of the Central Excises and Salt Act, 1944 (1 of 1944), the Central Government hereby makes the following rules further to amend the Central Excise Rules, 1944, namely:
1. (1) These rules may be called the Central Excise (Amendment) Rules, 1994.
(2) They shall come into force on the date of their publication in the official Gazette.
In the Central Excise Rules, 1944, in Rule 57H in Sub-rule (1),--
(i) after the words "received by a manufacturer" and before the words "immediately before obtaining the dated acknowledgement" the following shall be inserted, namely:
under any invoice or under any document as may be prescribed by the Central Board of Excise and Customs (constituted under the Central Board of Revenue Act, 1963 (54 of 1963)
(ii) after the word "before" and before the word "obtaining", the word "or after", shall be inserted;
(iii) the first proviso shall be omitted;
(iv) in second proviso the word "further" shall be omitted.
Notification No. 64/94-CE(NT), dated 7.11.1994 Relying on the above said amendment the learned Consultant stated that MODVAT Credit could be taken on any invoice or any document as may be prescribed by the Central Board of Excise & Customs.
3. In this connection he drew our attention to the Circular No. 76/76/94-CX dated 6.11.1994 issued in pursuance of the above said amendment of Rule 57H and after taking note of that amendment the above said Circular was issued by the Central Board of Excise & Customs. In order to appreciate the contention of the Consultant, we reproduce below the Circular.
Modvat--Transitional provisions--Amendment to Rule 57H--Clarification Refer to Notification No. 64/94-CE(NT), dated 7th November, 1994 amending Rule 57H.
2. Rule 57H of the Central Excise Rules, 1944 deals with transitional provisions. The present amendment to the said rule, inter alia, permits acceptance of "any invoice" or "any document" as may be prescribed by the Central Board of Excise and Customs as valid document under Rule 57G.
3. The present amendment to Rule 57H has been made to remove the difficulties arising out of the budgetary changes in 1994-95 relating to acceptance of "invoice" as proper document for the purpose of Modvat credit and issue of Notifications such as Notification No. 21/94-CE(NT), dated 12.5.1994 and Notification No. 32/94-CE(NT), dated 4.7.1994. The Assistant Collector, at his discretion could accept the invoice issued by the person referred to in Rule 52A. Notification No. 15/94-CE(NT) and Notification No. 21/94-CE(NT).
4. Now therefore by virtue of powers conferred by Rule 57H of the Central Excise Rules, 1944, the Central Board of Excise and Customs hereby prescribes the invoice/document issued by--
(i) a manufacturer from his factory; (ii) a manufacturer from his depot; (iii) a wholesale distributor/dealer of the manufacturer; or (iv) an importer from his godown, as valid document for the purpose of allowing Modvat credit.
5. It is clarified that such invoice should contain the details as referred to in Notification No. 15/94-CE(NT) and Notification 21/94-CE(NT). The Assistant Collector shall recognise such document if issued by the categories of persons mentioned in the said notifications who have got themselves registered under Rule 57GG of the Central Excise Rules, consequent to issued Notification No. 32/94-CE(NT), dated 4.7.1994.
6. It is further clarified that the document prescribed above by the Central Board of Excise and Customs could be accepted by the Assistant Collector only up to 31st December, 1994. In other words, any document issued by registered person prior to such registration would be acceptable if he is eligible to issue invoice/document under Notification No. 15/94-CE(NT) and Notification No. 21/94-CE(NT).
7. In view of above the Board desires that an immediate exercise should be taken as per provisions of law so that the credit intended to be allowed, as above, is not denied.
In this circular, the Central Board has taken note of the amendment to Rule 57H and after referring to the amendment the Board has stated that the various documents listed therein which are at SI. No. i to iv are valid documents and the Board also clarified that such invoice should also contain details as referred to in Notification 15/94-CE(NT) and also Notification 21/94-CE(NT). It was further mentioned in the circular that the AC shall recognise such documents if issued by the categories of persons mentioned in the said notifications. The learned Consultant therefore pleaded that after amendment to Rule 57H, since the persons mentioned have issued the invoice i.e. the depot, the invoice is a valid document in terms of the above said Notifications. In this connection he also relied upon the decision of the Tribunal in the case of Suprabhat Steel Ltd. v. CCE, Patna the Tribunal has held as under:
3.1.I have carefully considered the plea advanced from both sides. I am inclined to agree with the Id. advocate for the appellants/applicants that the question of taking Modvat credit on 'duplicate copy' of invoice, in terms of Rule 57G read with Rule 52A arises only if the invoices have been issued by a factory where the goods originally paid duty on the removal from the factory of manufacturer or from the bonded store room of the factory. In the instant case, it has been submitted by the Id. advocate and it has been urged during the submissions right from the original stage, that the invoices in the present case, have been issued by the stockyard of SAIL which is not a factory; it is corresponding to a dealer of the excisable goods whose invoices were accepted as valid duty paying documents. It is always customer's copy of the invoices issued by the stockyard and of SAIL that Modvat credit was taken.
3.2. In view of the factual position on submissions at lower stages, I am inclined to agree with the Id. advocate, that the modvat credit has been rightly taken subject, of course to verification of this limited fact that the invoices have been issued in the present case by the stockyard of SAIL in terms of Notification No. 15/94-CE (NT), dated 30th March, 1994. Appeal is thus allowed by remand in terms of aforesaid observations. Consequently, Stay Petition also gets disposed of.
Relying upon the above decision he stated that the appellants are entitled to Modvat Credit.
4. Shri Rama Rao, learned DR stated that he reiterates the reasoning in the impugned order.
5. We have considered the submissions made before us by both the sides. We find that the appellant's case is covered by the above said Circular of the Board and also the decision of the Tribunal cited supra. In view of the above, we grant absolute stay of the order of the lower appellate authority as prayed for by the appellants.
6. With the consent of the parties we have heard the appeal itself and considered the submissions made by both the sides. In this case, the invoice is issued from the depot of the HCL which is a Government of India Undertaking. In terms of the Circular issued by the Board vide No. 76/76/94-CX, dated 6.11.1994 this document can be taken to be a valid document for availing the benefit of Modvat Credit. This is more so after the amendment to the Rule 57H in terms of Notification No. 64/94, dated 7.11.1994 which we have reproduced above. It is further seen that the Tribunal had looked into this aspect in the decision reproduced above. After considering the matter, the Tribunal held that the invoice in that case which has been issued the stock yard of SAIL which is not factory corresponding to a dealer of excisable whose invoices were accepted as valid documents as duty paying documents. It is furth seen that there was lot of confusion at the relevant time regarding acceptance of sure documents and it is due to such confusion the amendment as well as the Circular has been issued. Therefore, merely because, original invoice has been produced by the sessee, the benefit cannot be denied to them which of course is for sending the goods. In the above background, we are of the view that Modvat Credit should be given to the appellants after verification of the fact that the invoice has been issued in terms of Notifica tion No. 15/94-CE dated 30.3.1994 and there was no duplicate invoice issued for another consignment pertaining to the same duty payment. Subject to verification, the Modvat Credit should be allowed to the assessee. The appeal is allowed in the above terms.
(Pronounced and dictated in the open court)