9911796707
TMI Blog1997 (7) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... aran, ld. Advocate appearing for the appellants, submits that Appeal No. E/524/95-NB deals with show cause notice dated 20-4-1992. He submits that in this show cause notice, four credits of duty have been dealt with. The following table shows the 4 credits : Sl.No. Entry No. Date of RG 23 A Part I II Amount of duty credit availed Brief facts of the documents. (1) (2) (3) (4) 1. Sl. No. Part I No.21 dated 30-10-1971 Part II No. 63 dated 30-10-1991 Rs. 270.00 The party received on 479 bags of inputs but availed credit of 480 bags. Thus they availed Rs. 270.00 (CED + SED) as excess credit which does not appear to admissible. 2. Part I No. 17 dated 10-9-1991. Part II No. 64 dated 1-11-1991 Rs. 32,352.00 The party received inputs on 10-9-1991 whereas Credit taken on the authority of SGP dated 17-9-1991 on 1-11-1991 which does not appear to be accompanied documents for proof of payment of duty as it was issued on later date which is not admissible. 3. Part II No. 75 to 79 dated 9-12-1991 Rs. 5,91,223.00 The party took and availed Credit on the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel explaining the procedure followed by M/s. IPCL, submitted that the goods imported by M/s. IPCL first go to IPCL s regional office in Delhi; then the stock is transferred by IPCL to their consignment agent, United Agencies, Kanpur; that M/s. United Agencies, Kanpur supplies the goods to the appellants against various delivery challans; that periodically, IPCL issues a consolidated certificate regarding CVD duty paid on imported raw materials; that this certificate clearly indicates the various delivery challans against which the material is supplied by the consignment agent of M/s. IPCL. He submitted that the goods received in the factory are clearly relatable to the duty paying certificate issued by IPCL. The ld. Counsel submitted that the appellants make an entry in RG 23A Part I as soon as the goods are received, but credit is taken in RG 23A Part II only after the certificate showing CVD duty payment is received. 5. Regarding the duty paying documents accompanying the goods, the ld. Counsel submitted that Proviso to Rule 57G(2) as amended on 1-3-1986 and again amended on 15-4-1987 stipulates that No credit shall be taken unless the inputs are received in the factory unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Supreme Court in the case of M/s. H.M.M. Limited reported in 1995 (76) E.L.T. 497, the ld. Counsel submitted that the Apex Court held that extended period was not invokable unless show cause notice puts the assessee to notice specifically as to which of the various commissions or omissions stated in the proviso to Section 11A(1) of the Central Excises Salt Act 1944 had been committed. The ld. Counsel submitted that this equally applies to Proviso to Rule 57-I of the Central Excise Rules. The ld. Counsel further submitted that it is true that in the impugned order of the ld. Collector (Appeals), averment of suppression has been made, but in the absence of such an allegation in the show cause notice, the allegation cannot be introduced at the adjudicating stage or the appellate stage. The ld. Counsel submitted that this has been so held by the Apex Court in the case of M/s. H.M.M. Limited. The ld. Counsel submitted that the entire case of the Department is built on ground of deficient documents. He submitted that duty paying documents are sent to the Department with every requisite return and, therefore, if there was a deficiency they should have pointed out within 6 months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a contravention of rules in Section AA of Chapter 5 of Central Excise Rules, therefore, penalty has rightly been imposed under Clause (bb) of Rule 173Q. He reiterated the findings of the lower authorities. 10. Heard submissions of both sides. We find that in respect of Appeal No. 524/94-NB, the appellant did not contest Sl. No. 1 and Sl. No. 2 of the Table of the show cause notice. Therefore they are not being discussed and the order of the lower authorities in regard to these 2 serial numbers is upheld. 11. In regard to Sl. Nos. 3 and 4, the contention of the Department was that duty paying documents had not accompanied the goods and, therefore, credit cannot be taken. We note that in his submissions, the ld. Counsel for the appellant has amply clarified the position factually and legally. We also note that Rule 57G was amended wherein care was taken to allow Modvat credit in case duty paying documents were received late. Thus, we find force in the arguments adduced by the ld. Counsel for the appellants in so far as Sl. Nos. 3 and 4 are concerned. Having regard to the submissions made by both sides and having regard to the facts that the law as amended and as was prevalent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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