Customs, Excise and Gold Tribunal - Delhi
Gujarat Ambuja Cements Ltd. vs Cce on 3 October, 2003
Equivalent citations: 2004(91)ECC143, 2003(157)ELT188(TRI-DEL)
ORDER S.S. Kang, Member (J)
1. Heard both the sides.
2. The appellants filed this appeal against order of the denial of modvat credit of Rs. 3,38,166 passed by the Commissioner (Appeals).
3. The Commissioner (Appeals), in the impugned order denied the modvat credit in respect of the above-mentioned amount has held as under:
"Similarly the modvat credit of Rs. 90,709 is not available to the respondents as the declaration was filed after taking the Modvat Credit and this delay was never condoned by the competent authority, which is legally required as per law.
The credit of Rs. 56,677.08 taken on invoice copy not marked as duplicate copy is also not available in view of the decision of the Larger Bench of CEGAT in the case of CCE v. Avis Electronics, 2000 (69) ECC 272 (LB) : 2001 (117) ELT 571 (T). The same is disallowed.
Credit of Rs. 1,90,780 is also not available to the respondents on the invoices which were not in their fame and as such were not the proper documents.
The appeal of the deptt. are disposed of on above term."
4. The contention of the appellants is that the credit was taken pursuance to the declaration filed by the appellants. The Commissioner (Appeals) wrongly held that the credit was taken prior to the filing of the declaration. The appellants relied upon the decision of the Tribunal in the case of J.M.B. Tools Ltd. v. CCE, Pune, 2002 (144) ELT 561 (T) wherein the credit was allowed even in the absence of the declaration.
5. Credit of Rs. 56,677.08 was denied on the ground that the invoices were not marked as duplicate copy. The appellants relied upon the amendment made in the Rule 57G and Rule 57T of the Central Excise Rules which was considered by the Larger Bench of the Tribunal in the case of Kamakhya Steels (P) Ltd. v. CCE, Meerut, 2000 (121) ELT 247 (T).
6. Credit of Rs. 1,90,780 was denied on the ground that the invoices were not in the name of the appellants. The appellants produced the copies of the invoices which show that their name was mentioned in the invoices. These copies of the invoices were handed over to the learned JDR for verification which were sent to the Commissioner (Appeals) for his cement but the concerned Commissionerate has not forwarded any comment on these invoices. In these circumstances, this fact requires verification.
7. In this case the credit was denied on the ground that the credit was made before filing of the declaration and copies of the invoices were not marked as duplicate and the invoices were not in the name of the appellants. Rule 57G and Rule 57T was amended vide Notification No. 7/99-CE (NT) dated 9.2.99 to the extent that the credit shall not be denied on the ground that any of the documents, mentioned in sub-rule (3) does not contain all the particulars required to be contained therein under these rules, if such document contains details of payment of duty, description of the goods, assessable value, etc. The Larger Bench of the Tribunal in the case of Kamakhya Steels (P) Ltd. (Supra) after relying upon the Board's Circular No. 441 /7/99-CX, dated 23.2.99 held that this amendment is applicable to the pending'cases.
8. The Larger Bench of the Tribunal in paras 6, 7 and 8 has held as under:
"Shri A.R. Madhaw Rao, ld. Advocate as an intervener submitted that the question referred to the Larger Bench in the instant case need not be answered and matter be remanded to the Adjudicating Authority to examine the issue afresh in. the light of amendment to Rule 57G and 57T as per Notification No. 7/99-CE (N.T.) dated 9.2.1999, and the two circulars (M.F. D.R. letter F.No. 267/6/92-CX dated 30.1.1992 and Circular No. 441/7/99-CX dated 23.2.1999). He referred to the relevant amendment [7/99-CE (N.T.), dated 9.2.1999 which is as under:
"7/99-CE (NT.), dated 9.2.1999: In exercise of the powers conferred by Section 37 of the Central Excise Act, 1944 (1 of 1944), the Central Government hereby makes the following rules further to amend the Central Excise Rules, 1944, namely:
l.(l) These rules may be called the Central Excise (3rd Amendment) Rules, 1944.
(2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Central Excise Rules, 1944,--
(a) in rule 57G, after sub-rule (10), the following sub-rule shall be inserted, namely, --
"(11) Credit under sub-rule (2) shall not be denied on the grounds that-
(i) any of the documents, mentioned in sub-rule (3) does not contain all the particulars required to be contained therein under these rules, if such document contains details of payment of duty, description of the goods, assessable value, name and address of the factory or warehouse;
(ii) the declaration filed under sub-rule (1) does not contain all the details required to be contained therein or the manufacturer fails to comply with any other requirements under sub-rule (1)."
He submitted that circulars are binding on the authorities functioning under the statute. Referring to the Circular No. 441 /7/99 dated 23.2.1999, he said that Circular was issued to follow certain guidelines in respect of Notification No. 7/99 dated 9.2.1999 while considering the admissibility of Modvat credit and further it was specified in the circular that guidelines are applicable to the pending cases and the pending cases are to be disposed of accordingly. In this context, he referred to the decision of the Supreme Court in the case of Mathew M. Thomas v. Commissioner of Income-tax, 1999 (111) ELT 4 (SO wherein it was held that proceedings shall include proceedings at the appellate stage. Particularly, he drew out attention to the para 8 of the said judgment which reads:--
"8. It is well settled that the word "Proceedings" shall include the proceedings at the appellate stage. It is sufficient to refer to the judgment of this Court in Garikapati Veeraya v. N. Subiah Choudhry and Ors., AIR 1957 SC 540 wherein the Court said to page 553: --
"(i) That the legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings".
Hence we are unable to persuade ourselves to agree with the view expressed by the Full Bench of the High Court in the judgment under appeal that the Circular would apply only to proceedings pending before the Competent Authority".
We are not convinced with the arguments advanced on behalf of the Revenue that amended provisions and Circulars referred to above are not applicable to the point in issue. On going through the amendment to Rule 57G particularly with reference to sub-clause IT of 2(a) of 7/99-CE, (N.T.), dated 9.2.1999 the Circulars and the case law, we find that matter is required to be re-examined as it was rightly pointed out by the intervener. In the view we have taken, the matter is remanded to the Jurisdictional Assistant Commissioner to examine the admissibility of Modvat credit for the period covered under Appeal No. E/1840/95 and to pass an order in accordance with law."
9. In view of the above decision of the Tribunal, the matter requires reconsideration in view of the amendment in Rule 57G and Rule 57T of the Central Excise Rules and in view of the copies of the invoices produced by the appellants which were in their name hence the impugned order denying the modvat credit is set aside and the matter is remanded to the adjudicating authority for deciding afresh after affording the opportunity of hearing to the appellants. The appeal is disposed by way of remand.