Customs, Excise and Gold Tribunal - Delhi
Sidharth Petro Products vs Cce, New Delhi on 13 February, 2001
Equivalent citations: 2001(129)ELT782(TRI-DEL)
ORDER
V.K. Agrawal
1. In this appeal filed by M/s Siddharth Petro Products, the issue involved is whether the modvat credit was eligible to them on the strength of invoices which were not in prescribed colour code.
2. MS. Shruti Chaudhary, Ld. Advocate, submitted, that the Assistant Commissioner under Adjudication Order No. 152/97, dt. 4-12-97 disallowed them modvat credit of the duty paid on inputs as they had received the inputs during the month of August and September 1995 under invoices which were not having prescribed colour i.e. pink as required under Notification No. 23/95 dt. 3-5-95; that the Commissioner (Appeal) also rejected their appeal by relying on the decision in the cast of Suraj Foundary Vs. CCE Allahabad 1999 (114) ELT 559. The 1d. Advocate, further, submitted that there are catena of judgements on the issue of procedural/technical lapses in which it has been held that when inputs had been received which have suffered duty and were used in manufacture of final products and no fraud is suspected modvat credit cannot be denied; that the requirement of invoices being in pink colour came into effect only from 1-8-95 and as the inputs were received by them during August and September 1995, this was only transtional period and, therefore, Modvat credit cannot be denied. She, further, submitted that in the case of CCE Meerut Vs. Chaddha Pvt. Ltd 2001 (127) ELT 813 (T) the Tribunal has allowed the Modvat credit though the invoices were not printed in paper having Pink Colour. She also relied upon the decision in the case of Nizam Tubes Ltd. Vs. CCE Shillong, 1998 (104) ELT 559 (T) where the Modvat Credit was allowed by the Tribunal holding that the period was involved in that appeal being August and September 1995 when the colour scheme was recently introduced.
3. Countering the arguments, Shri M.D. Singh, 1d, SDR, submitted that Notification No. 23/95/CE(NT) dt. 30-5-95 was issued by the Government under sub-Rule (4) of Rule 57GG of the Central Excise Rules prescribing in colour of the invoices to be issued by the dealers for the purpose of availing the credit; that this Notification was issued on 30-5-95 and clearly two months period was given to the trade and industry for making the arrangements for issuing the invoices according to the provisions of law, as the provisions of the Notification were to come into effect only from 1-8-95. He, further, submitted that in Chaddha Paper case, the Tribunal had extended the benefit of doubt as the colour of the duplicate invoices in that case could be termed as pink as well. He finally, mentioned that the Appellate Tribunal in the case of CCE Vs AV is Electronics CCE 2000 (117) ELT 571 has held "that insistence on document evidencing Payment on duty on the inputs as prescribed by Rules is not a technicality to be complied for availing Modvat credit..... When a particular thing is directed to be performed in a manner prescribed by Rules, it should be performed in that manner itself and not otherwise". The 1d. SDR also mentioned that the Appellants have relied upon the decision in the case of Timber Products Vs. CCE Bhubneswar 1998 (24) RLT 174 (T) which is not applicable to the facts of the present matter as the stamp of the Octroi on invoice clearly proved that the said copy of the invoices was 'transporters copy'. In reply the 1d. advocate submitted that there is no allegation that credit was not availed of on the strength of duplicate copy of the invoice.
4. I have gone through the submission of both sides. The Larger Bench of Tribunal in Avis Electronics case, supra, has clearly held that the requirements of duty paying documents as prescribed by Rules is not a technical requirement. If the law provides for a particular thing to be performed in a specific manner it has to be done in that manner itself. As the Notification issued under Rule 57 GG (4) provides that the duplicate copy of the invoice, on the basis of which modvat credit can be availed, should be in pink colour, no other documents can substitute the same unless and until the law provides for the same. Admittedly the invoice was not in pink colour in the present matter. I am also not convinced that this was a transistional period and Department should not insist on pink colour invoice for availing of modvat credit as clear two months were provided by the Notification for switching over to colour scheme of the invoices I also observe from the adjudication Order that the pink colour invoices were not used as the dealer was reported to have stock of printed computerised invoices and they could implement the scheme only form October 95. The Notification has given clearly two months time for adopting the colour scheme of the invoice and it is not open to individual dealers to choose the date from which the scheme will be implemented by them. The 1d. SDR had distinguished the decision in the case of Chaddha Papers. The Tribunal in the said decision also referred to Avis Electronics decision but observed that the said decision will not apply because the colour of the duplicate invoice can be termed as pink as well. Similarly the ration in the case of Manglam Timber is also not applicable, The Tribunal held in the said case that the invoice bore stamp of Octroi checkpost which clearly showed that the invoices was given to the transport carrier and only duplicate copies is given to the transport carrier. As admittedly the invoice is not in Pink colour during the relevant period I do not find any infirmity in the inpungned Order and, accordingly, the appeal is rejected.