Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Central Excise vs Triveni Glass Works Ltd. on 11 August, 2006
Equivalent citations: 2006(113)ECC7, 2006ECR7(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. This Revenue appeal has been filed against Order-in-Appeal No. 34/2004 dated 25.5.2004 by which the Commissioner has accepted the documents produced by the assessee for availing the modvat credit. The finding recorded by the Commissioner in Para 4 and 5 are reproduced herein below.
4. I have gone through the case records and the written submissions made by the respondents at the time of personal hearing. The respondents are engaged in the manufacture of sheet glass and also availing modvat facility in respect of inputs and capital goods under Rules 57A/57T/57S of CE Rules, 1944. In union budget of 1994, the government allowed modvat facility in respect of inputs used as fuel. Accordingly, the respondents purchased furnace oil from M/s. IBP Co. Ltd., Vizag, a government of India enterprise. The issue relates to the period of March 1994 to April 1995. The supplier (M/s. IBP co.) got registered on 27.4.95 with the excise department as per Rule 174 of CE Rules 1944. For the period prior to 27.4.1995, the supplier (M/s. IBP Co.) was issuing "Challan cum invoices" where all particulars as required under Rule 52A had been incorporated. Moreover, M/s. IBP, being a wholesale distributor/dealer of the manufacture (M/s. IOC) was eligible to issue invoices/challans for modvat purpose in terms of notification No. 15/94 and 21/94 CE (N.T). Moreover, the receipt of input in the factory and its use in the manufacture of final product is not in dispute. Nor the duty paid nature of furnace oil is under dispute. Therefore, the substantial benefit of modvat credit can not be denied to the respondents on account of minor technical infirmity. I find that as per Board's Circular No. 76/76/94-CX. Dt. 8.11.94, the Deputy Commissioner/ Assistant Commissioner was empowered to accept the specified documents only upto 31.12.94. By following the said circular, the Additional Commissioner has allowed credits to the respondents upto 31.12.94, based on the challan-cum-invoices issued by M/s. IBP Co., credits should have also been allowed by the Additional Commissioner on the same set of documents for the remaining period of January 95 to 27.4.95. There is no material difference in the circumstances and the documents issued by the supplier M/s. IBP Co., after registration with the department on 27.4.95 and prior to registration with the Department.
I find that in Pearl Industries v. Collector, Central Excise, Raipur the Hon'ble Tribunal has held that invoices issued from unregistered depot - is to be treated as duty paying document even if the supplier is not registered with the department. There is no requirement of registration of Depot in terms of Notification No. 15/94 - CE (NT) as well as 32/94-CE(NT). Modvat credit rightly taken on the strength of such invoices/challans - Rule 57G of CE Rules, 1944.
In CCE, Chandigarh v. Ajit Cotton Ginning PDSR Mills it was held that invoice-cum-challan issued by IOC Ltd., are valid duty paying document for availing modvat credit under Rule 57G of CE Rules, 1944.
In CCE v. Vinayaka Alloys Pvt. Ltd. , it was decided that in the case of invoices issued by depot, there was no requirement either under notification No. 15/94 or 32/94 that the depots should be registered. Hence the invoices issued by depots can not be rejected on the ground that the depots are not registered.
In Bengal Safety Industry v. CCE , Calcutta CEGAT ruled that "since the registration of the dealer is not under the control of the manufacturer credit could not be denied on the invoices issued by unregistered dealers.
In the case of Modern Wire Products v. CCE, Delhi it was held that credit can not be denied on ground that invoices not issued by registered dealer.
Following the ratio of the above decisions and material facts of this case wherein receipt and utilization of inputs has not been disputed by the department, I hold that appellants are entitled to avail modvat credit on the basis of challan-cum-invoices issued by M/s. IBP Co., Vizag. A benefit of substantial nature can not be denied to the appellants on the ground that the supplier of the inputs failed to take registration with the Central Excise Department upto 27.4.95. The order passed by the Additional Commissioner, Guntur allowing credit to the respondents appears legal and proper. I do not find any infirmity in the said order. Therefore, the appeal filed by the department is liable to be dismissed. In view of this, I pass the following order.
ORDER he appeal filed by the department is dismissed. The impugned order passed by Additional Commissioner is upheld.
2. The Revenue contends that the assessee is not entitled to avail modvat credit on the basis of the documents produced by them from a dealer who is not registered under Central Excise Act. The Revenue has relied on the Larger Bench decision rendered in the case of Balmer Lawrie & Co. Ltd. v. CCE, Kanpur .
3. We have heard both sides in the matter.
4. The learned Counsel submits that the Gujarat High Court in the case of Vimal Enterprises v. UOI has overruled the ratio of the Larger Bench judgment rendered in the case of Balmer Lawrie & Co. Ltd. (supra) and therefore, the order passed by the Commissioner is just, legal and proper in the light of the cited Gujarat High Court judgment.
5. We have carefully considered the submissions and notice that the Commissioner has relied on large number of judgment to grant the benefit of modvat credit. The Revenue has relied on the Larger Bench judgment of Balmer Lawrie & Co. Ltd., however, this judgment has been set aside by the Gujarat High Court in the case of Vimal Enterprises (supra) and have held that the invoices issued by non-registered dealer is also valid for the purpose to grant the benefit of modvat credit. In view of this judgment, there is no merit in this appeal and the same is rejected.
(Pronounced and dictated in open Court)