9911796707
TMI Blog2001 (9) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... here is regarding the maintainability of the orders of the lower authority disallowing the Modvat credit on the alleged ineligible documents. As I have already decided similar appeals earlier, I propose to dispose of these three appeals by this combined order-in-original, without grant of personal hearing to the appellants. 3. In Appeal No. 449/96(M), the appellants are M/s. Indian Oil Corporation Limited, Lube Blending Plant engaged in the manufacture of lubricants. They received additives from Bombay under different invoices during the period January to May, 1995 but the duplicate copy of the invoice was not available. So the appellants claimed Modvat on the basis of the originals. They pleaded with the AC in the adjudication proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation that so long as the inputs are duty paid and there is no dispute on this fact and the same have been used in the manufacture of final product and this fact was also not in dispute, the credit cannot be denied on procedural lapses. They also pointed out that the lorry driver tends to lose the duplicate copy if he is not alert and cautious. 6. I find force in the submissions of the two appellants herein. I find that the Board vide their Circular No. 68/68/94-CX, dated 20-9-1994 has clarified that both under Rule 52A/57GG the credit can be allowed on the strength of original invoice where the duplicate invoice is lost in transit. It is however, further clarified in the Board s circular that while permitting the credit, the AC should do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment stand. The Board s circular clearly states that by inserting sub-clause 2A to the Rule 57G as 2A Notwithstanding anything contained in sub-rule 2, a manufacturer can take credit on the invoices received in the factory on the basis of original invoice if the duplicate copy of invoice has been lost-in-transit subject to the satisfaction of Assistant Commissioner. (b) In the above said Board s Circular No. 68/68/94 CX, dated 20-9-1994, it was clearly clarified by the Board that as per provisions of Rule 57G manufacturers are required to take Modvat credit only on receipt of duplicate copy of invoice issued under Rule 52A and wherever such duplicate copies have been lost-in-transit, the Modvat credit shall be taken only after receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a procedural lapse. The availment of Modvat credit on the above document is construed as a gross violation of Modvat rules. The assessee cannot take shelter under the sub-rule 2A of 57G of Central Excise Rules, 1944. Further the case law cited in determining the fact of present issue being the decision of Honourable Tribunal, New Delhi and Tribunal, Jaipur respectively in the case of Krishna Insulation v. Commissioner of Central Excise, 1996 (84) E.L.T. 220 (T); Kay Polyplast Limited v. Commissioner of Central Excise 1996 (83) E.L.T. 681 (T) sets out that facility of Modvat credit is admissible on the strength of endorsed bill of entry. The issue decided by the tribunal is not applicable to the taking of credit on the basis of origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords as required under Rule 57G or Rule 57GG referred to above, is condonable under the Law. A distinction has to be made between a procedural condition of a technical nature and substantive condition. It is the non observance only of former which is condonable while that of the later is not condonable as the same is likely to facilitate commission of fraud and introduce administrative inconvenience and misuse of the Modvat Credit This Bench also relied upon the Larger Bench decision presided over by Mr. Justice K. Sreedharan, Hon ble President of the Tribunal, in the case of CCE, New Delhi v. Avis Electronics Pvt. Ltd. reported in 2000 (117) E.L.T. 571 (T) wherein it has been held that with regard to loss of duplicate copy of the invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a valid document in the absence of any proof of loss of duplicate copy of the invoice in transit. We are therefore of the considered view that if duplicate copy of the invoice which is modvatable has been lost in transit, the assessee should have placed all the particulars regarding loss of duplicate copy of the invoice and the fact of their taking Modvat credit on the strength of the original copy before the Assistant Commissioner without suppression of any material fact. This is a very important document just like Cheque/DD on which the assessee can take credit to discharge the duty liability. In the present case, the respondents have not even cared to inform the Assistant Commissioner that duplicate copy has been lost in transit. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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