9911796707
TMI Blog2001 (4) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession of the duplicate copy of the invoice which was the proper document for the purpose of availing Modvat Credit. During the verification of the duty paid documents, it was noticed by the department that the assessee was not in possession of the duplicate copy of the invoices which were the proper documents for availing the credit. It was also noticed that credit was utilized towards payment of duty at the time of clearance of the goods manufactured by the assessee. It is the contention of the Revenue that as the duplicate copy of the invoices were not produced for verification, the total credit of Rs. 3,22,491/- availed was liable to be expunged. In the grounds of appeal, the appellant-Commissioner has pointed out that since dup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of substantive nature, the said lapse cannot be condoned. He also relied upon the decision of Larger Bench, presided over by Hon ble Mr. Justice K. Sreedharan, 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 in regard to loss of duplicate copy of the invoice during the period subsequent to 20-5-1994 [date of insertion of Rule 57G(2A) of C. Ex. Rules, 1944], a combined reading of Rule 52A(3) and first proviso to Rule 57G(2) and Rule 57G(2A) makes it clear that a manufacturer could take credit only on the basis of duplicate copy of the invoice and where the duplicate copy has been lost in transit, he could take credit on the basis of the original copy of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 23-7-96 sub-rule (3A) was inserted under Rule 57S and the sub-rule (3A) states that notwithstanding anything contained in sub-rule (3), a manufacturer can take credit of the capital goods received in the factory on the basis of original invoice if duplicate copy has been lost in transit, subject to satisfaction of the Assistant Commissioner. In support of his contention, he relied upon the judgment in the case of RP David Others v. Agricultural Income Tax Officer Another reported in 1972 (86) ITR 699. By this judgment it was held that wherever a statute invests a discretionary power in a public officer, it is normally for exercise in favour of the person concerned unless there is some sound and relevant reason for denying the benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate copy has been lost and prior permission of the AC is not mandatory before availing Modvat Credit on original copy of the invoice. He further relied upon the Single Member judgment of the East Regional Bench, in the case of Bansal Mechanical Works Ltd. v. CCE, Calcutta-II reported in 1999 (35) RLT 839 (CEGAT) wherein it has been held that where duplicate copy has been lost in transit by employee of the appellants and not by transporter and credit taken on the basis of the original copy, before permission by Assistant Commissioner, credit is not deniable on both the grounds as the Rule does not provide for loss by transporter only and prior permission by Assistant Commissioner. He also relied upon the Single Member judgment of the North ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty liability. In this case, as rightly contended by the learned DR, the respondents have not even cared to inform the Assistant Commissioner that the duplicate copy meant for transport has been lost in transit. On the contrary they took the Modvat credit and utilized the same for payment of duty without getting the permission of the Assistant Commissioner. As regards the plea of the learned Counsel for the respondent that discretionary power should have been exercised in favour of the assessee as held in the case of RP David Others v. Agricultural Income Tax Officer Another - 1972 (86) ITR 699, I am of the view that this plea could be appreciated if the respondents had applied to the Assistant Commissioner to exercise the discretionar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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