2000 (12) TMI 389 - AT - Central Excise

Summary

Issues:
1. Recovery of irregular Modvat credit taken by a registered dealer.
2. Levy of penalty under Rule 173Q.

Analysis:
1. The case involved a dispute regarding the recovery of irregular Modvat credit taken by a registered dealer. The dealer, authorized to issue Modvatable invoices, faced a situation where the duplicate copy of an invoice was lost. Despite making the necessary entry in the register based on the original copy, the Modvat credit was sought to be reversed by the revenue authority. The Commissioner held that the provisions of Rule 57-I did not apply to registered dealers like the appellant, as they were covered under Rule 174 read with Rule 57GG of the Central Excise Rules. The Commissioner's interpretation was upheld, setting aside the liability imposed on the appellants for recovery of irregular credit.

2. The appellants also challenged the levy of penalty under Rule 173Q. The tribunal noted that the show cause notice did not specify the particular part of the rule under which the penalty was imposed. It was highlighted that the dealer had applied for regularization of the activity to the Jurisdictional Assistant Commissioner within a short period of taking the credit, as required by Rule 57G(6). The tribunal observed that the rule in force at that time did not make the satisfaction of the Assistant Commissioner mandatory. There was no evidence of verification by the officers regarding the physical receipt of goods. Consequently, the tribunal concluded that the penalty provisions under sub-rules (bb) or (bbb)(I) of Rule 173Q did not apply in this case. As the dealer had not taken impermissible credit and had maintained proper records, the levy of penalty was deemed unsustainable. Therefore, the Commissioner's order upholding the penalty was set aside, and the appeal was allowed.