2010 (1) TMI 256 - HC - Central Excise

Cenvat Credit- the applicant claimed the Modvat credit on the basis of original copies of invoices under Rules 57-G of the Central Excise Rules. The said Modvat credit has been disallowed on the ground that under Rules 52A and 57G (2A) of the Rules, the Modvat credit could be claimed on the basis of the duplicate copy of invoice and not on the basis of the original invoice and therefore, the claim of Modvat credit was in violation of Rule 52A and Rule 57G of the Rules. Asstt. Commissioner has further held that the applicant has wrongly availed the benefit of Rule 57G(2A) of the Rules and despite sufficient time was given to the assessee to pro duce duty paying documents but the same was not produced. Tribunal has refused to entertain the plea taken by the applicant on the ground that no such plea has been taken by the assessee before the Assistant Commissioner. Held that- We do not see any error in the view taken by the Tribunal in refusing to entertain such plea. In such circumstances, we do not see that any substantial question of law which is sought to be considered by this Court arises from the order of the Tribunal. The reference is, accordingly, dismissed.

Summary

Issues:
1. Disallowance of Modvat credit based on original invoice instead of duplicate copy.
2. Refusal to entertain lost duplicate copy plea by the Tribunal.

Analysis:
Issue 1: The case involved a dispute regarding the disallowance of Modvat credit claimed by the applicant based on the original copies of invoices under Rules 57-G of the Central Excise Rules. The claim was rejected on the grounds that Modvat credit could only be claimed based on the duplicate copy of the invoice, as per Rules 52A and 57G (2A) of the Rules. The Asstt. Commissioner found that the applicant wrongly availed the benefit of Rule 57G(2A) and failed to produce duty paying documents despite being given sufficient time. The Commissioner (Appeal) and the Tribunal upheld the decision to disallow the Modvat credit, leading to the applicant's appeal to the High Court.

Issue 2: The applicant contended before the Tribunal that the duplicate copy of the invoice had been lost in transit, requesting a remand back to the Asstt. Commissioner for consideration of this explanation. However, the Tribunal refused to entertain this plea, stating that it was not raised before the Asstt. Commissioner. The High Court, after hearing arguments from both sides, affirmed the Tribunal's decision, emphasizing that since the applicant did not raise the issue of the lost duplicate copy before the Asstt. Commissioner, the Tribunal was correct in not considering it at that stage.

In conclusion, the High Court dismissed the reference application under Section 35 H (1) of the Central Excise Act, 1944, upholding the decisions of the lower authorities regarding the disallowance of Modvat credit and the refusal to entertain the lost duplicate copy plea. The Court found no error in the Tribunal's decision and concluded that no substantial question of law arose from the order, leading to the dismissal of the reference.