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TMI Blog2003 (6) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... t an invoice issued by a secondary dealer should be registered and reject the claim of the assessee for the benefit of the Modvat credit in respect of invoice No. 05036, dated 6-4-94. 2. The appellant is engaged in the manufacture of cotton yarn, cotton fabric, man-made yarn and man-made fabric following under Chapters 52, 54 and 55 of the Central Excise Tariff Act, 1985. The appellants were availing benefit of Modvat credit in conformity with Section AA of Chapter V of the Central Excise Rules. It is stated in the Memorandum of Grounds of Appeal as follows : 3. During the months of April and June, 1994, the Appellants availed of the credit of Modvat on Polyester Staple Fibre (hereinafter referred to as PSF) falling under S.H. 5501.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that PSF was not directly dispatched to the Appellants but the same was dispatched through RIL/Emsons, who in turn raised invoice in the Appellants favour. (ii) The credit cannot be availed of based on original copies of invoices as duplicate copies alone were valid for availment of credit of Modvat. 3. On the basis of the reply and the arguments made by the Advocate for the assessee, the Additional Commissioner passed an Order-in-Original rejecting the claim of the assessee in paragraph 8.3. He held us as follows : 8.3. In terms of Notification No. 15/94-C.E. (N.T.) dated 30-3-94, Government prescribed the invoice issued by any of the following persons as a valid document for availing Modvat credit. (1) A manufacturer fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls. The said M/s. Emsons Ltd., have then also issued an invoice in favour of the appellants unit covering any identical consignment while referring to payment of duty on the bill as per Reliance Industries Ltd., and invoice of the manufacturing unit. If the claim of the appellants that M/s. Emsons Ltd., were only acting as financier, the invoices should have been issued by M/s. Reliance Industries Ltd., in favour of the appellants unit on account of M/s. Emsons Ltd., and not the other way round. Therefore in this transaction two intermediatory have come into play i.e. M/s. Reliance Industries Ltd. and M/s. Emsons Ltd., before the goods have entered the appellants unit for benefit of Modvat credit. This situation is not authorised under Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IL has not directly sold the goods to M/s. Simplex Mills Co. Ltd, Bombay-11 and the assessee has availed Modvat credit on the strength of sale Note of M/s. RIL mentioned above, the Modvat credit of Rs. 1,47,018.00 (Basic Rs. 1,27,842.00 + Addl. Rs. 19,176.00) availed by the assessee is not permissible to them. 6. He states that the sale note referred to in the show cause notice is in respect of the invoice No. 050036 and that he further states that both authorities have gone on a wrong footing namely the ownership of the goods in question. Goods in question he states that there cannot be talk of ownership of the goods. But excise duty is levied on the manufacture. This has been amply made clear by the decision of the Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill have civil consequences, in fact, it acts prejudicial interest of the assessee. Such an order, before it is made, should be preceded by issue of a proper show cause notice mentioning the grounds under which the tax is demanded or Modvat credit is sought to be denied. In the instant case before me show cause notice simply state the non-availability of the Modvat credit to the assessee and it is not permissible on that count. It does not disclose the grounds under which the Modvat credit is sought to be denied. This would not have enabled the assessee to file a proper reply. In the Order-in-Original the adjudicating authority has chartered a different route altogether in paragraph 8.3 of the order-in-original. It talks of ownership and du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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