Document Fragment View

Matching Fragments

1. In the impugned order the learned Commissioner (Appeals) held--

10 (iv) With regard to admissibility of Modvat on 'Proforma invoice' I find that supplier of inputs i.e. M/s. Escorts Yamaha Ltd. duty paying impugned documents which bore on their top as 'Invoice/Proforma/lnvoice/Stock/Transfer/Ad-vice/Branch/Transfer/Advice/ and they boldly ticked all the said documents as 'Proforma Invoices'. This ticking/marking clearly establishes that these documents are not 'Invoices' otherwise the consignee must had ticked on these documents as 'Invoices' because option to tick 'Invoices' was readily available inscripted on the documents. Besides, the mentioning of note on all these documents as - 'Note-material being supplied for our own job work No. as per P.O.' also establishes that the status of these documents was not that of an Invoice' which is issued for sale of the goods under Rule 52A. This note proves that there was no sale of the goods but transfer of Raw Material for undertaking some job work. This motive establishes the status the documents something like internal challan, which does not sound well to treat them as Modvatable Invoices. Besides, Modvat cannot be allowed on such proforma invoices, as these are not the final documents. Proforma invoices are normally issued in advance merely to indicate the price offered by any seller. It does not depict the actual value and duty paid thereon. In fact it cannot be considered as a duty paying document issued under Rule 52A because it has not been specified under Rule 57G(3). Hence the credit taken by the party on the basis of these 'Proforma Invoices' is inadmissible.

2. The facts of the case briefly stated are that the appellant is engaged in the manufacture of plastic moulded parts of motor vehicle and two wheelers and were availing modvat credit of duty paid on inputs. During the period 6.1.97 to 9.7.97 the appellant availed credit of Rs. 10,01,674 on the strength of 33 proforma invoices issued by M/s. Escort Yamaha Motors Ltd. On a document in which on top was printed" invoice/proforma invoice/stock transfer advice/branch transfer invoices and wherein 'proforma invoice' was ticked. The Department alleged that proforma invoice was not the prescribed document on the strength of which the modvat credit could be taken. They accordingly, issued Show-cause notice on this count alongwith other objections. The objection that remained surviving was in respect of these 33 invoices.

4. Learned Counsel submits that the documents which are composite one the only mistake was that proforma invoice printed on the top of the invoices among others was ticked though alongwith proforma invoice the documents showed invoice/transfer advice/branch transfer advice etc.

5. Referring to the impugned order learned Counsel submitted that in the last paragraph of the order the learned Commissioner (Appeals) observed--"Proforma invoices are normally issued in advance merely to indicate the price offered by any seller." He submits that this observation of the learned Commissioner (Appeals) is perfectly correct. He submits that learned Commissioner (Appeals) further observed, "it does not depict the actual value and duty paid thereon". Counsel submits that this part of the observation of the Commissioner (Appeals) is totally false and incorrect inasmuch as all the particulars that is pre-authentication, serial No., duplicate for transporter, date and time of issue and removal, vehicle number, particulars of demand of duty with reference to debit entries were specifically mentioned in the documents and therefore, this finding of the learned Commissioner (Appeals) was wrong.

9. We have given our careful consideration to the submissions made by both the sides. We note that the document in dispute is a composite document serving as invoice/proforma invoice/stock transfer invoice/branch transfer advice. In these words the 'proforma invoice' has been ticked. However scrutiny of the document showed that it contains serial No., amount of duty collected, credit of duty taken, date and time of removal, vehicle number and as also an indication 'duplicate for transporter'. Thus we find that the document in question is not a proforma invoice as is known in commercial parlance, but an invoice containing all the particulars required under Rules 52A and 57A. Since the document ticked as 'proforma invoice' contains all the particulars necessary for availing modvat credit we hold that it was a document on the strength of which modvat credit could be taken. Accordingly, the appeal is allowed. Consequential relief, if any, shall be admissible to the appellants in accordance with law, Cross-Objection filed by Revenue is also disposed of.