Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Customs And Central ... vs V.B.C. Industries Ltd. on 10 March, 1999
Equivalent citations: 1999(66)ECC208
ORDER S.L. Peeran, Member (J)
1. These are two rectification applications filed against Final Order No. 2193 and 2194/97 dated 19.8.97 passed by the Hon'ble Vice President Shri V.P. Gulati and Member (J) Shri T.P. Nambiar allowing the Revenue appeal solely on the ground that the Modvat had been taken by the assessee against delivery Challans and they were not been prescribed. The assessee respondents in the appeals contend that while disposing of the appeals the entire finding of the Commissioner (Appeals) has not been taken into consideration nor the evidence produced by the respondents to show that it was not the Delivery challans but the duty paid on the import on the Bill of Entries which had been duly approved by the Assistant Commissioner of Customs had not been taken into consideration. It is also contended that the Tribunal while dealing with one appeal had dealt with only one appeal and the facts of other appeal had not been gone into while pronouncing the judgment in two appeals filed by the Revenue against the respondents. They point out that there is an error on the face of the record. Therefore it calls for recalling the Order and so re-hearing the appeal. The learned Advocate appearing for the respondents assessee produced evidence before the Commissioner (Appeals) which according to him had not been placed before the Judge. He prays for taking this into consideration so as to enable him to point out to the Bench about the apparent error. The Godavari Fertilizers and Chemicals by their letter dated 6th January 1995 to the Assistant Collector of Central Excise, Vizianagaram had requested for granting permission for loaning of Imported Anhydrous Ammonia to the respondents on payment of duty on the ground that the Assistant Collector of Customs, Vizagapatnam had already allowed such a diversion on payment of requisite customs duty.
2. The Learned Counsel submits that such a permission was granted and thereafter the goods were brought in the Factory premises and detailed entries were made and all the Registers in Form RG-23 A Part I. Thereafter, after seeking permission from the Department Modvat credit had been taken. He submits that the said Modvat credit was taken in terms of the Rules as well as the prescribed documents by the Board. He submits that it was not on the Delivery Challans alone on it the Modvat credit was taken as held by the Bench in the Final Order. Therefore he submits that as the error is apparent on record, the Final order is required to be recalled and the matter heard.
3. Learned SDR submits that these documents and the submissions had not been placed before the Bench at the time of hearing and the Bench was under the bona fide impression that the respondents had taken Modvat credit only on the basis of Delivery Challans. He also points out that while the credit was taken between 9.2.94 to 19.2.94, the requisite permission from the Assistant Commissioner, Customs is said to have taken on 28.6.94.
4. On a careful consideration of the submission and on perusal of the evidence produced by the respondents in support of the pleas raised in the Rectification application, we are satisfied that there is an error apparent on record that thus calling for recall of the Final Order Nos. 2193 and 2194 dated 20.8.97. We had heard the appeals and re-considered the prayers made by the Revenue in the Appeal Memo. On a re-consideration we are of the considered opinion that the matter is required to go back to the Original authority for de novo consideration. The reason being that the respondents have produced enormous evidence before the Bench to show that the Assistant Commissioner of Customs had accorded permission to Godavari Fertilizers and Chemicals Limited to pay duty on 200 Metric Tonnes of imported Anhydrous Ammonia which were diverted to the respondents. The Godavari Fertilizers and Chemicals Limited had also made such an application to the Assistant Commissioner of Central Excise by their letter dated 6th January 1995 bringing forth all these facts and on record there appears to be a permission which had been granted. Further documents had also been exhibited to show that the duty had been paid on the Bill of Entry by the respondents and goods cleared by them. The said goods had been received by them in their factory. The Delivery Challans of Godavari Fertilizers and Chemicals Ltd. and the said details had been taken into account in RG 23 A Part I Register. The said Register had been duly checked and verified by the concerned officers of the Range of Central Excise. Therefore on a perusal of these documents it is clear that the respondents had not taken Modvat credit merely on the Delivery Challans of Godavari Fertilizers and Chemicals Ltd., but a said procedure had been followed by the respondents and the Godavari Fertilizers and Chemicals Ltd. to pay duty by seeking permission from the concerned authority. In view of these documents which had been considered by the Commissioner but the same had not been considered by the Original authority, therefore, it is but proper that the impugned Order of the Commissioner (Appeals) is set aside and the matter remanded to the Original authority to consider this matter de novo and pass order after affording an opportunity of hearing to the respondents.