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I find that MODVAT credit can be extended only on those inputs which have suffered duty and which are received in the factory and used in manufacture of final products after proper accountal. Furthermore, credit can be extended only when the procedures set out under Rule 57A to Rule 57J of Central Excise Rules, 1944, is followed. I rely on the judgment of the Tribunal in the case of M/s. P.G. Conductors vs, CCE, Jaipur - 1996 (81) ELT 336 Tri. Where in it has been held that for availing MODVAT credit - declaration is a substantive requirement and not a procedural or technical one because Rule 57G prescribes that the assessee shall file a declaration and obtain a dated acknowledgement of the said declaration. The above requirement is also stressed in the case of M/s. Paro Food Products vs. CCE reported in 1988 (38) ELT 332 (T). Therefore, other judgments cited by the assessee cannot be made basis for granting the credit now. Apart from this, I find that neither the assessee has produced any proof of receipts of inputs in his factory nor any proof of their use in manufacture of finished products after accounting the same in his own records on RG23A part I & II. It is noteworthy that the assessee was availing MODVAT credit on identical inputs during the relevant period. Had he actually received inputs in his factory under the invoices now produced then why he did not take MODVAT credit after proper accountal of the same of records. All this shows that the invoices now being produced were actually neither available with him at that time nor the goods were also received and used by him in the manufacture. Therefore, I do not accept that credit can be granted to the assessee on invoices now being produced. I have also to stress that as per MODVAT rules, especially under Rule 57E, the benefit of MODVAT cannot be extended for the payments mode after committing an offence. The intention of the government is that MODVAT should not be extended to he user factory when the supplier has committed an offence. On the same analogy I find that no MODVAT can be extended on inputs that are used to manufacture clandestinely cleared goods. I also find that the Notice has not rebutted the allegations in the Show Cause Notice per se that they have committed the offence with an intention to evade payment of excise duty and instead proceeded to claim the MODVAT credit on the inputs based on certain invoices, which were produced to the adjudicating authority. On perusal of these invoices, I find that most of the invoices are only original copy of the invoices and the same cannot be correlated with an record whether the inputs mentioned in the invoices were actually received and used in the manufacture of products which were cleared clandestinely. As per MODVAT Rules, credit can be claimed only on the transporter's copy. Hence, on this ground also no credit is admissible to the assessee. As regards the deduction of amount of Rs. 4,43,352/- claimed to have been paid by the assessee, I find that no proof to the effect that the amount has been debited vide RG23A part II Sl. No. 225 dated 09.09.99 for the invoices Sl. Nos. 57 to 60 has been produced and therefore, the same cannot be allowed to be deducted towards duty liability determined against them.

MODVAT D. The appellants are entitled for Modvat credit on the raw materials used in the manufacture of finished product. Admittedly the appellants have proper invoices of her receipt of raw materials and also there is no dispute that the said raw materials were used in the manufacture of finished goods., Hence the appellants are entitled for Modvat credit.
D.1. In this regard the appellants place reliance on the judgement of the Hon'ble Supreme Court in the case of FORMIC INDIA DIVISION VS CCE - 1995 (77) ELT 511 (SC) wherein the assessee was allowed the benefit of Proforma Credit whether there was procedural compliance or not. Similarly the Tribunal in the case of BYCO INTERNATIONAL AND OTHERS VS CCE - 1993 (49) ECR 126 held that Modvat credit should be extended while quantifying the demand. In the case of GUJARAT AMBUJA CEMENT VS CCE 1996 (85) ELT 154 (T) the Tribunal while holding that extended period of demand would be attracted however held that the a benefits of Modvat credit couldn't be denied, while confirming the demand. For the sake of brevity the appellants are citing a few decisions of Tribunal wherein similar view was taken. APEX STEELS (P) LTD S CCE - 1995 (80) ELT 368 (T); CHAMUNDI STEEL RE-ROLLING MILLS VS CCE, 1996 (81) ELT 563 (T) and INDIA OXYGEN LTD VS CCE - 1997 (89) ELT 557 (T).
D.4. The finding that the benefit to Modvat cannot be extended to the user factory when they have committed an offence has no merit. There is no such bar at the relevant time in the Modvat Rules intention of the Government cannot be a basis to deny statutory benefits, as one has to go by the words used in the relevant Rules and not by the intention of the Government.
D.5. The finding that the appellants have produced original copy of the invoices and as well as the transporter's copy and Modvat credit can be claimed only on the transporter's copy is not sustainable in law. The appellants submitted original copies in respect of certain input invoices and transporter's copies in respect of remaining input invoices. In respect of some invoices the transporter's copies were not submitted as the same was misplaced. But as per Rule 57G (2A) of Central Excise Rules, 1944 a manufacturer can take credit based on original invoice if the duplicate copy of the invoice has been lost. The appellants rely and refer to the decisions of Hon'ble Tribunal in the following cases. 1. ZINC-O-INDIA Vs. CCE, Jaipur - 1996 (88) ELT 373 (T). 2. TRISHUL ALLOYS PVT. LTD. Vs. CCE, Calcutta - 1997 (92) ELT 249 (T). and 3. RAYMOND LTD Vs. CCE, Pune - 1997 (93) ELT 489.

8. Another plea taken by M/s HHPL is that they are entitled to claim Modvat Credit on the strength of original copy of the invoice. Similarly they contend that they are eligible for Modvat Credit even when procedural lapses have been committed. So far as the invocation of the longer period of limitation is concerned, prima facie we find that the Commissioner has invoked the longer period of limitation correctly. We also find that the claim of the appellants that they are entitled to claim Modvat Credit on the strength of original copy of invoice is concerned, we are not in a position to accept their plea in this regard. We find that in the case of CCE New Delhi vs. AVIS Electronics Pvt Ltd. Reported in 2000 (117) ELT 571 (T), the larger bench presided over by Hon'ble Mr Justice K. Sreedharan, Hon'ble President of the Tribunal held that in regard to loss of duplicate copy of the invoice during the period subsequent to 20.5.94 (date of insertion of Rule 57G (2A) of CE Rules, 1944), a combined reading of Rule 52A (3) and the first proviso to Rule 57G (2) and 57G (2A) makes it clear that a manufacturer could take credit only on the basis of duplicate copy of the invoice and where the duplicate copy has been lost in transit he could take credit on the basis of the original copy of the invoice provided he satisfies the Assistant Commissioner about the loss of the duplicate copy. This was a mandatory requirement and not a mere technicality and the contrary view taken in the case reported in 1998 (98) ELT 164 (T) was not approved by the larger bench. The Tribunal also held that credit is not admissible in cases where the manufacturer did not even care to inform the Assistant Commissioner about the loss of the duplicate copy. In the present case it is not the case of M/s HPPL that they have informed the Assistant Commissioner about loss of duplicate copy. It is also not their case that they have produced any corroborative evidence like FIR or any other documents to support their plea in this regard. The law helps the diligent and not the negligent.