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TMI Blog2002 (8) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... ADVICE /and they boldly ticked all the said documents as PROFORMA INVOICES . This ticking/marking clearly establishes that these documents are not INVOICES otherwise the consignee must had ticked on these documents as INVOICES because option to tick INVOICES was readily available inscripted on the documents. Besides, the mentioning of note on all these documents as - Note - material being supplied for our own job work No as per P.O. also establishes that the status of these documents was not that of an INVOICE which is issued for sale of the goods under Rule 52A. This note proves that there was no sale of the goods but transfer of Raw Material for undertaking some job work. This motive establishes the status the documents somethi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods had been cleared under Rule 52A on payment of duty; that copies of these invoices had been filed with the jurisdictional Range Office; that such invoices contained all the particulars as per law; that Modvat credit was taken after receipt of the goods in the factory; that in the circumstances, the credit was not deniable. Learned Counsel submits that proforma invoices in dispute were pre-authenticated, were assigned serial numbers, were marked Duplicate for Transporter ; that they show the date and time of issue of removal of goods and vehicle number; that particulars of payment of duty with reference to the debit entries are indicated in the proforma invoices; that all the particular required in terms of Rule 52A were indicated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit could be taken. There were other documents also. The learned Counsel submits that since all the particulars were furnished in the documents, which work as invoice also, therefore, denial of Modvat credit was not warranted in the present case. 7. Learned Counsel referred to the judgment of this Tribunal in the case of C.C.E., Hyderabad v. Moldtek Plastics Ltd. reported in 2002 (148) E.L.T. 906 (T) = 2002 (50) RLT 944 in which the Tribunal in Para 3 held - It is well settled position that the job worker is entitled to take Modvat credit. Furthermore the Commissioner (Appeals) has held in favour of the assessee, following the various decisions of the Tribunal as can be seen from para 7 of the impugned order. Paras 6 and 7 of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the meaning sale as defined in Section 2(h) of the Central Excise Act, 1944 and allowed the credit. On the similar grounds at the Asian Paints own depot, the Show Cause Notice issued by the Department seeking imposition of penalty was set aside by the Commissioner of Customs and Central Excise, Pune by his Order-in-Original No. 17/CEX/1997, dated 17-2-97. I am in respectful agreement with the above case laws. Applying the ratio of the above case laws, I hold that the invoices on which Modvat credit has been disallowed vide the impugned order, will fall well within the ambit of sale as stated in Notification No. 14/95-C.E. (N.T.), dated 20-4-95 and, therefore, are eligible to Modvat credit. The impugned order denying the Modvat c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57G(3). Learned DR submits that Larger Bench of this Tribunal in the case of Avis Electronics [2000 (117) E.L.T. 571 (T-LB)] held that requirements in the Rules are mandatory and not of technical or procedural nature. He submits that prescription of a document in these terms must be considered as mandatory. He, therefore, submits that learned Commissioner (Appeals) has rightly disallowed Modvat credit on these 33 proforma invoices. 9. We have given our careful consideration to the submissions made by both the sides. We note that the document in dispute is a composite document serving as invoice/proforma invoice/stock transfer invoice/ branch transfer advice. In these words the proforma invoice has been ticked. However scrutiny of the do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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