9911796707
TMI Blog1995 (6) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... 944, besides a penalty of Rs. 5,000 u/s 173Q(1) of Central Excise Rules. 2. Shri Sampath, the learned Counsel for the appellant submitted that the appellant is engaged in the manufacture of ACSR and AA Conductors for which aluminium wire rods are used as inputs. The appellant had opted for Modvat credit and had filed the necessary declaration and the inputs in question had been properly declared in the Modvat declaration. The appellant placed order through their agent with M/s. Anu Cables, Ajmer for supply of aluminium wires and also paid for the same. The consignment was received on 19-11-1986 and the supplier also sent gate pass No. 23, dated 25-10-1986. Subsequently, the Department found on verification that as per gate pass No. 23, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question were cleared under gate pass No. 1, dated 16-11-1986 and by mistake a wrong gate pass was sent. It was further submitted that the supplier also paid the duty for the second time on 7-5-1988 to prove their bona fides and good faith. The learned Counsel therefore prayed for setting aside the impugned order. 3. Shri Subramanian, the learned DR while not disputing the fact that the inputs in question had suffered duty and is relatable to gate pass No. 1, dated 16-11-1986 submitted that since initially when the goods were received on 19-11-1986 without a valid gate pass, the credit taken was not in order. 4. We have considered the submissions made before us. On going through the records, we find that the appellant is eligible to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86. The appellants, however, before the learned lower authority have pleaded that the consignment in question had in fact been received under the cover of Gate Pass No. 23, dated 25-10-1986. The admitted position is that no goods had been despatched by the suppliers, namely, M/s. Anu Cables to the appellant when Gate Pass No. 23, dated 25-10-1986 was sent and no duty has also been debited in respect of the said gate pass. The question, therefore, arises whether the goods had been despatched under Gate Pass No. 1, dated 16-11-1986 and any duty had been paid in respect of the same. We find that in the paper book filed while a copy of gate pass No. 23, dated 25-10-1986 has been filed, no copy of Gate Pass No. 1, dated 16-11-1986 has been submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held by Member (Technical). Sd/- Sd/- (S. Kalyanam) (V.P. Gulati) Dated : 9-11-1994 Vice President Member (T) 7. [Order per : T.P. Nambiar, Member (J), agreeing with Member (T)]. - The point of difference between learned Member (J) (Vice President) and learned Member (T) is referred to me by the President for resolving the difference of opinion. The point of difference is to the effect that : Whether in the facts and circumstances of the case the appellants should be allowed the benefit of Modvat Credit in respect of the inputs in question since the inputs have suffered duty and are relatable to gate pass No. 1, dated 16-11-1986 as held by Shri S. Kalyanam, Vice President or the benefit of Modvat Credit can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were cleared and removed and the goods in question were cleared under gate pass No. 1, dated 16-11-1986. 9. The learned Vice President has held that by mistake the supplier sent a wrong gate pass No. 23, dated 25-10-1986 instead of gate pass No. 1, dated 16-11-1986 which is relatable to the inputs in question and therefore mere sending of a wrong gate pass when the inputs had admittedly suffered duty and covered by a valid gate pass may not be a ground to direct recovery of the credit. On the contrary, the learned Member (T) held that the appellants had admitted that they received goods under gate pass No. 23, dated 25-10-1986 whereas the supplier stated the goods were despatched under gate pass No. 1, dated 16-11-1986. The learned M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods. Contradictory statements of the appellants as well as M/s. Anu Cables clearly establish this finding of the lower authority. In such circumstances taking credit on the abovesaid gate pass No. 23, dated 25-10-1986 is not permissible and reversal of the same in my opinion is in accordance with law. The learned Member (T) has held that payment of duty at a later date does not validate credit wrongly taken earlier. In that view of the matter I agree with the finding given by learned Member (T), in this regard. 11. The file may be placed before the regular Bench for passing necessary orders in this regard. Sd/- (T.P. Nambiar) Dated : 7-6-1995 Member (J) FINAL ORDER In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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