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TMI Blog2000 (2) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 23/94-C.E. (N.T.), credit could be taken on the basis of original copy of the invoice. The ratio of the same Bench in the case of Nestle India Ltd. v. Collector of Central Excise, Chandigarh, reported in 1998 (99) E.L.T. 443 (Tribunal) is that no credit could be taken on the original copy of the invoice. This issue has been also handled by a number of single Members. It is, therefore, necessary that this issue could be settled by a Larger Bench. It may be necessary to examine whether the requirement of production of a particular copy of the invoice is merely procedural or whether it is mandatory in nature." 2.All these appeals are at the instance of the Revenue. Different show cause notices were issued to different parties for reversing the Modvat credit availed by them on the ground that they took Modvat credit without support of the duplicate copy of the invoice under which they got the inputs. Manufacturers to whom these show cause notices were issued submitted their explanations. Adjudicating authority, namely, the Assistant Collector, disallowed the credit. Those who availed of the credit were directed to deposit the amount. Penalty was also imposed on the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing Modvat credit availed of by the appellants on the basis of original copies of invoice." The conflicting views expressed by the same bench of this Tribunal have necessitated this reference to Larger Bench. 4.It is conceded before us by the learned Departmental Representative representing the Revenue and the learned counsel appearing on behalf of the respondents that the period concerned in these appeals is that subsequent to 20-5-1994 on which date Notification No. 23/94 was issued bringing into force clause (2A) to Rule 57G of the Central Excise Rules, 1994. 5.As far as the issue raised in these appeals is concerned, Central Excise Rules which are relevant to be dealt with are Rules 52A(3), 57G(2) and 57G(2A). Rule 52A states that goods are to be supplied on an invoice. According to clause (2) of that Rule, invoice should be in quadruplicate. Clause (3) provides as to how the various copies of the invoice are to be dealt with. The original copy of the invoice should be marked as "original for buyer". Duplicate copy should be marked as "duplicate for transporter." By Notification No. 23/94 dated 20-5-1994, it was provided that this duplicate copy is the one to be used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfies the Assistant Collector that the duplicate copy of the invoice has been lost in transit. In other words, the manufacturer can take credit of the duty paid on inputs only on the basis of the duplicate copy of the invoice and where the duplicate copy of the invoice has been lost in transit, he can take credit of the duty paid on the inputs on the basis of the original invoice provided he satisfies the Assistant Collector about the loss of the duplicate copy. 6.Learned D.R. representing the Revenue submitted that a manufacturer can take credit of the duty paid on inputs on the basis of the original invoice only if he satisfies the jurisdictional Assistant Collector the factum of loss of the duplicate copy of the invoice in transit. According to him, the loss of the invoice should have happened in the course of the transit of the goods; namely while the invoice was in the possession of the driver of the vehicle in which the inputs were brought to the manufacturer's premises. We are not in a position to agree with this submission. If this argument is to be accepted we will have to read some more words into the rule. Relevant words used in clause (2A) of Rule 57G are "if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the concerned Asstt. Collector passes order on the issue relating to loss of the duplicate copy in transit. This will safeguard the interest of the manufacturer as well as the Revenue. 8.In the light of the above finding arrived at by us on the question referred to us, we hold that insistence on document evidencing payment of duty on the inputs as prescribed by Rules is not a technicality to be complied with for availing Modvat credit. Observation made by the appellate authority that insistence on duplicate copy of invoice is purely a procedural requirement is against Rules so cannot be sustained. When a particular thing is directed to be performed in a manner prescribed by Rules, it should be performed in that manner itself and not otherwise. A combined reading of the provisions contained in the Rules makes it clear that a manufacturer who wants to take credit of the duty paid on inputs must base his claim on the duplicate copy of the invoice. In case the duplicate copy has been lost in transit, he can take credit on the basis of the original. This can be done only if he satisfies the concerned Asstt. Collector about the loss of the duplicate copy in transit. 9.On the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. Thus, appeal E/411/98-NB is allowed by way of remand to the adjudicating authority to consider the question of limitation only. Since the matter is an old one, adjudicating officer should pass final order within three months from the date of receipt of a copy of this order. We make it clear that the manufacturer should be given a reasonable opportunity of being heard in the matter before passing final order. 13.In appeal E/412/98-NB, manufacturer availed Modvat credit without producing the duplicate copy of the invoice. They did not seek permission of the concerned Asstt. Collector to claim Modvat credit on the basis of the original invoice on the ground that duplicate copy was lost in transit. The stand taken by the manufacturer was that omission to submit duplicate copy of the invoice was a technical lapse. This contention cannot stand in view of the findings arrived at by us herein before. Therefore, the appeal of the Revenue is allowed. Order-in-appeal passed by the Appellate Commissioner is reversed and that of the adjudicating authority restored. 14.In appeal E/413/98-NB, manufacturer took credit on the basis of the original copy of invoice. It was contended before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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