9911796707
TMI Blog2001 (1) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 3. The appellants are engaged in the manufacture of oxygen gas, dissolved acetylene dry nitrogen, etc. They availed Modvat credit of Rs. 2,90,350.77 on the basis of original invoices other than the transporter's copy, but the same was inadmissible as per amendment of Rule 57G(2) vide Notification No. 23/94-C.E. (N.T.), dated 20-5-1994. They were accordingly issued show cause notice dated 27-4-1994 vide which recovery of Modvat credit amount under Rule 57-I of the Central Excise Rules was proposed to be made from them. However, that show cause notice was later on, amended by issuing corrigendum, dated 26-2-1996 wherein the amount recoverable was corrected to Rs. 2,86,772.77 instead of Rs. 2,90,350.77. In reply to that show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the appellants were within their right to avail the same on the original invoices for having lost the transporter's copies. He has further submitted that in respect of invoices dated 22-5-1994, 16-5-1994, 27-5-1994 and 14-5-1994 vide which Modvat credit of Rs. 70,077.48 was taken, an application was also given seeking permission to take the Modvat credit on the original invoices and that sub-rule (2A) of Rule 57G of the Rules is retrospective in operation and as such the Modvat credit could not be disallowed to the appellants. Therefore, the impugned order of the Commissioner (Appeals) deserves to be set aside. 6. On the other hand, the learned JDR has refuted this contention of the Counsel and maintained that for having failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re entitled to its benefit, is wholly misconceived and cannot be accepted. Sub-rule (2A) was admittedly inserted in Rule 57G of the Rules vide Notification No. 23/94-C.E. (N.T.), dated 20-5-1994. Through this sub-rule the manufacturer had been permitted to take Modvat credit on the inputs received in the factory on the basis of original invoices if the duplicate of the invoices was lost in transit subject to the satisfaction of the Assistant Commissioner. Earlier to that no such provision existed in Rule 57G. This sub-rule conferred power on the Assistant Commissioner if he was satisfied about the loss of the duplicate copies to allow Modvat credit to the manufacturer on the original invoices. This sub-rule, therefore, cannot be said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of original invoices, except in respect of the above referred 4 invoices was applied for by the appellants before the competent authority. Even regarding those 4 invoices the application was moved only in July, 1994 while the Modvat credit was availed in May, 1994 and that too without any cogent proof of loss of the duplicate copies of the invoices. 10. The ratio of the law laid down in CCE, Jaipur v. Shive Shakti Pvt. Ltd., 1997 (90) E.L.T. 547 (Tribunal) and Trishul Alloys Pvt. Ltd. v. CCE, Calcutta-II, 1997 (92) E.L.T. 249 (Tribunal) referred by the learned Counsel cannot be made applicable to the facts of the present cases. In both those cases it had been, no doubt, observed by the cases it had been, no doubt, observed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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