9911796707
TMI Blog2003 (2) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... under Chapter Heading 8509 of the CETA. They availed Modvat credit of Rs. 2,05,821/- on the inputs. But on scrutiny of their RT 12 returns for the month of September 1992, it revealed that they had not submitted original gate passes on the basis of which credit was availed by them. Accordingly, show cause notice dated 15-2-93 was issued to them for disallowing the Modvat credit and for imposing penalty also on them. They are alleged to had neither filed any reply to the show cause notice nor even put up personal appearance. The Assistant Collector accordingly disallowed Modvat credit and also imposed penalty of Rs. 10,000/- on them under Rule 173Q. That order of the AC dated 30-9-99 was affirmed by the Commissioner (Appeals) vide order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received and utilised by the appellants in or in relation to the manufacture of the final product nor those goods were duty paid. No enquiry in this regard was conducted by the adjudicating authority. Rather after issuing show cause notice on 15-2-93, the adjudicating authority kept the matter pending before him for more than six years. The appellants had even denied the receipt of the show cause notice and averred that for that reason they did not file any reply. In the Order-in-Original, the adjudicating authority has no where specifically observed that the show cause notice was received on a particular date by the appellants or by their representative. The Commissioner (Appeals) in the impugned order has no doubt observed that the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be submitted immediately after September 1992. But he has lost sight of other circumstances that the very receipt of the show cause notice dated 15-2-93 for producing the original documents was denied by the appellants. The first reminder for personal appearance was issued to them only on 26-5-99, after a lapse of over six years. Therefore, in these circumstances, the appellants plea about destruction of the documents in the fire which broke out in their factory in 1994 could not be ignored by the Commissioner (Appeals). They could not be penalised by disallowing Modvat credit for their initial lapse of not attaching the original gate passes, but only photocopies with RT 12 returns for September 1992. 5. The learned SDR has in the writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a case where any exemption had been sought by the appellants. It is also not a case where allowing Modvat credit of the disputed amount to the appellants would facilitate commission of fraud and introduce administrative inconvenience, in view of the facts and circumstances narrated above. In the instant case the appellants after availing Modvat credit did file RT 12 returns giving details of the gate passes on the strength of which it was taken. There is nothing on the record to suggest that they did not file even photocopies of the gate passes along with the RT 12 returns and extracts from Part I and Part II of RG 23A. There is also no evidence to suggest that the goods covered by those gate passes were not duty paid or were not actuall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal as is evident from the written submissions filed by the learned SDR. But no capital out of above this proposition of law can be made by the Revenues for disallowing the Modvat credit of the disputed amount to the appellants, in the light of facts and circumstances detailed above. Keeping in view the above referred facts and circumstances, the appellants could not be disallowed Modvat credit, when neither the actual receipt and utilisation of the goods covered by the disputed gate passes, in their factory for production of final product was doubted nor the duty paid character of those goods was questioned by the Department and more so when during the pendency of the adjudication proceedings they lost the original documents due to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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