Customs, Excise and Gold Tribunal - Delhi
Goetze India Limited vs Commissioner Of C. Ex. on 12 May, 2000
Equivalent citations: 2000(121)ELT428(TRI-DEL)
ORDER P.G. Chacko, Member (J)
1. Appellants had wanted to take certain Modvat credit on imported inputs on the strength of a copy of the Bill of Entry duly attested by the Customs Appraiser. For this purpose, they applied to the jurisdictional Assistant Collector of Central Excise on 20-5-1995 for permission to take the credit on the strength of such attested copy of the Bill of Entry. This request was placed before the Assistant Commissioner after more than 4 months since receipt of the goods. The ground stated in support of the request for the Assistant Collector's permission was that the proper copy of the Bill of Entry had been lost in transit. A reply to the above request was given by the Superintendent (Technical) by his letter dated 14-6-1995, wherein he stated that the application for permission to avail Modvat credit on the attested copy of the Bill of Entry, had not been considered by the Assistant Collector on the ground that the party had applied for such permission after a gap of more than 4 months and on the further ground that the party had not followed the procedure laid down in Trade Notice No. 111/94-CE. Subsequently, the appellants made another request before the Assistant Commissioner on 21-12-1995. In their letter dated 21-12-1995, apart from reiterating their request for permission for the aforesaid purpose, they also requested the Assistant Commissioner to issue a speaking order in the matter for the purpose of enabling them to seek legal remedy provided under the law. The reply to this letter was, again, given by the same Superintendent, who advised the party that the appeal could be filed on the basis of his earlier letter dated 14-6-1995. Thereafter, the appellants had no option but to prefer appeal to the Commissioner (Appeals) against the Superintendent's letter dated 14-6-1995. In that appeal, the appellants had clearly spelt out the legal infirmities of the proceedings of the lower authorities in connection with their request for permission to take Modvat credit on the basis of attested copy of Bill of Entry. They specifically pleaded that they were not heard by the lower authorities in the matter, nor was any opportunity of hearing given to them. The lower appellate authority, however, side tracked this aspect of the matter and went into the merits of the appellants' request for permission to take Modvat credit on the strength of attested copy of Bill of Entry and passed the impugned order holding that attested copy of Bill of Entry was not prescribed as valid document for availment of Modvat credit under the Central Excise Law.
2. I have heard Ms. Sunita Ekka, Representative of the appellants' company and learned JDR, Shri A.K. Jain representing the respondent/Revenue.
3. Learned Representative of the appellants has reiterated the grounds of the appeal and has submitted that the question whether attested copy of Bill of Entry could be validly used for availment of Modvat credit on imported inputs has been decided in favour of Assessee by the Tribunal's decision in the matter of SRF Limited [1999 (108) E.L.T. 862 (Commr. Appl.)]. She has further submitted that, even on merits, the order of the Commissioner (Appeals) is not sustainable in the light of the case law cited. She has prayed for allowing this appeal. Learned JDR, on the other hand, submitted that the proper document for availment of Modvat credit in the present case was a triplicate copy of the Bill of Entry as per the provisions of Rule 57G of the Central Excise Rules. He has relied on the decision of the Tribunal (Larger Bench) in the case of CCE v. Avis Electronics [2000 (37) RLT 501] wherein the Larger Bench held that where the law provides a particular procedure for the doing of an act, such act should be done only in accordance with such procedure and not otherwise. According to learned JDR, the appellants did not follow the procedure as laid down in the trade notice referred to in the Superintendent's letter. He, therefore, submits that the appellants have no good case even on merits and that the appeal should be rejected.
4. I have carefully considered the rival submissions. I note that the appellants' application for permission for availment of Modvat credit on the strength of attested copy of Bill of Entry was not considered by the Assistant Collector, as rightly pointed out by the Superintendent in his letter. The appellants persisted with their request to be considered by the Assistant Collector on its merits but the Assistant Collector kept quiet. It appears that he directed his inferior officer to advise the party to go in appeal before the appropriate authority against the non-consideration of the party's request. In such circumstances, the appellants had no option but to approach the Commissioner (Appeals) and they did so. The Commissioner (Appeals) rejected the appeal without considering, or giving any finding on, the question whether the lower authorities were right in dealing with the matter in the way they had done, and without even giving any opportunity of hearing to the party. To this extent, the order of the Commissioner (Appeals) has to be held to be a non-speaking order on the question raised by the party before him. On account of this position, the impugned order has to be set aside. The matter requires to be remanded to the Assistant Collector for a decision in accordance with the law as well as the principles of natural justice. When the Assistant Collector is the proper officer to deal with a request for permission to take credit on the strength of a certain document in certain circumstances, that authority itself should consider the request and dispose of the same on its merits by a speaking order. This did not happen in the instant case. Hence, the necessity of remand to the Assistant Collector. It is further noted that the trade notice referred to in the Superintendent's letter is a notice relating to availment of Modvat credit on the strength of original copy of invoice on the ground of duplicate copy thereof having been lost in transit. The said notice appears to have nothing to do with availment of Modvat credit on the strength of attested copy of Bill of Entry on the ground of duplicate copy thereof having been lost in transit This observation shall be taken into account by the Assistant Collector while dealing with the matter de novo.
5. In the light of the foregoing discussion, I set aside the order of the Commissioner (Appeals) and allow the present appeal by way of remand directing learned Assistant Commissioner to consider the matter on its merits and dispose of the same by a speaking order after giving a reasonable opportunity of hearing to the appellants.