Customs, Excise and Gold Tribunal - Delhi
Matsushita Television And Audio India ... vs Cce on 20 February, 2004
Equivalent citations: 2004(95)ECC249, 2005(191)ELT502(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. The issue involved in this appeal, filed by M/s. Matsushila Television & Audio India Ltd., relates to the availability of Modvat Credit.
2. Shri Rajesh Kumar, learned Advocate, submitted that the appellants manufacture television and audio systems and avail of Modvat Credit under Rule 57A of the Central Excise Rules, 1944; that the Modvat Credit of the duty paid on inputs has been disallowed to them by the Department on the ground that they had failed to produce duty-paying documents for the purpose of defacement; that they had taken the Modvat Credit initially on the basis of the specified duty-paying documents, which were misplaced after taking the credit; that they had submitted photo copies of duty-paying documents alongwith the transport and receipt documents; that in respect of Bill of Entry, they had made efforts and obtained exchange control copy of Bill of Entry and the photo copy of the same had been produced before the Department which could have been easily verified by the Department; that the Department could have easily verified the factum of the receipt of the goods and payment of duty from the Customs. He relied upon the decision in the case of Industrial Cables (India) Ltd. v. CCE, Chandigarh, 1997 (94) ELT 379 (T) wherein the Modvat Credit had been allowed by the Tribunal as the appellants, therein, had executed an indemnity bond and produced quadruplicate copy of the Bill of Entry; that they have also filed an indemnity bond equivalent to the amount involved in Bill of Entry No. 11265 with the Department. He, further, submitted that they have also produced a transporter's copy of the challan No. 2044 dated 30.1.97 evidencing receipt of the inputs; that they have also produced a photo copy of the original challan and also copy of the Material Receipt Note under which the goods had been received by them in their stores. He also relied upon the decision in the case of Union of India v. Klockner Supreme Pentaplast Ltd., 2002 (79) ECC 437 (MP) : 2002 (140) ELT 370 (MP) wherein the Madhya Pradesh High Court has held that when the assessee had submitted the Bill of Entry in Triplicate in original at the time of taking the Modvat Credit but subsequently it was lost, on account of shifting of office, but to satisfy the Department, they had once again obtained certified copy from the Department, no question of law for consideration of High Court arises.
3. Countering the arguments, Shri V. Valte learned SDR, submitted that under Rule 57G of the Central Excise Rules, 1944, Modvat Credit of the duty paid on inputs can be taken by a manufacturer only when the goods are received in the factory under the cover of the duty-paying documents specified in the said Rule; that as the appellants have failed to satisfy the Department regarding loss of documents and they did not have specified duty-paying documents, the Modvat Credit is not allowable to them; that it has been held by the Larger Bench of the Tribunal in CCE, New Delhi v. Avis Electronics Pvt. Ltd. and Ors., 2000.(69) ECC 272 (LB) : 2000 (37) RLT 501 (CEGAT-LB) that insistence on document evidencing payment of duty on the inputs is not a technicality to be complied with for availing the Modvat credit; that "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". Reliance has also been placed on the decision in the case of Rajasthan Pigments & Chemicals v. CCE, Jaipur, 2000 (120) ELT 486 (T) wherein it has been held that when a duplicate for transporter copy of invoice is lost in transit, satisfaction of the Assistant Commissioner is essential to enable the credit to be taken on inputs on the strength of the original copy of invoice. The learned SDR has also relied upon the decision in the case of Shivalik Agro Chemicals v. CCE, 2001 (135) ELT 662 (T) and the decision of the Larger Bench of the Tribunal in the case of Balmer Lawrie & Co. Ltd. v. CCE, 2000 (116) ELT 364 (T) wherein it has been held that the provisions of Rule 57G are mandatory in nature.
4. We have considered the submissions of both the sides. It has been the contention of the appellants from the very beginning, that the Modvat credit has been taken by them on the strength of the specified documents, which got misplaced afterwards and for the said reason the original copy of transport documents could not be produced by them for defacement purposes. In support of their contention, that they have received the goods, they had produced before the Department photocopy of the triplicate copy of Bill of Entry and photo copy of the transporter copy of the invoice/challan besides other documents. The very fact that they have produced photocopy of the duplicate copy of challan and triplicate copy of Bill of Entry, goes to show the .... of the specified documents on the strength of which credit had been taken by them. The decision relied upon by the learned SDR mainly relates to the situation where the specified documents, such as duplicate copy of the invoice, is lost during transit. In such a situation, the Modvat can be taken by an assessee on the basis of original copy of invoice only after satisfying the Assistant Commissioner about the loss of the duplicate copy of invoice in transit. In the present matter, the specified copy of Bill of Entry and invoices have been misplaced after the receipt of the goods in the factory. Neither the receipt of the goods in the factory nor their use for the intended purpose nor the duty paid nature has been doubted by the Department. In view of these facts, the appellants are eligible to take the Modvat credit of the duty paid on the inputs. We, therefore, allow the appeal.