NOBLE PLASTIC MOULDS Vs. CCE

JUDGEMENT

(1.) This appeal has been filed by the appellants against the impugned order dated 4.2.2002 vide which the Commissioner (Appeals) had affirmed the order -in -original of the Asstt. Commissioner dated 31.8.1999, who disallowed the credit of disputed amount of Rs. 7,76,388/ - to the appellants and also imposed penalty of Rs. 20,000/ - on them.

(2.) The facts are not much in dispute. The appellants availed Modvat credit of the above referred amounts on the basis of CVD paid by Bill of Entry No. 4303 dated 10.3.1992 which was in the name of M/s. Kothari Sales Agency and did not bear endorsement in their favour. They were served with a show -cause notice for the recovery of Modvat credit amount and a penalty was also proposed to be imposed on them on the ground that the Modvat credit was inadmissible to them as the Bill of Entry was not endorsed in their favour and they also did not inform the Asstt. Commissioner of having purchased the goods from the importer on High Sea Sale basis. The appellants however, contested the correctness of the show -cause notice and maintained that they had purchased the goods on the basis of High Sea Sale Agreement from the importer, M/s. Kothari Sales Agency and paid basic custom duty and CVD also. They also averred that the goods were released to them on payment of duty by the Customs Authority through the CHA and they had utilized the goods in their factory for the manufacture of the products. The adjudicating authority did not accept this plea of the appellants and confirmed the demand and imposed penalty on them as detailed above. The Commissioner (Appeals) has affirmed the said order of the Asstt. Commissioner.

(3.) Sofar as the payment of basic customs duty as well as CVD vide Bill of Entry dated 10.3.1992 of Rs. 7,76,388/ - by the appellants is concerned, it remains undisputed. It also remained undisputed that the goods on payment of duty were released to the appellants on the basis of that Bill of Entry and they had utilised the goods. The main ground on which the Modvat credit of the paid CVD, had been disallowed to them by the adjudicating authority is that Bill of Entry did not bear endorsement of the importer, M/s. Kothari Sale Agency in their favour. But keeping in view the above referred facts, this could not be made be ground for disallowing the Modvat credit to the appellants in view of the ratio of law laid down by the Tribunal in case of Commissioner of Customs & Central Excise, Indore v. National Steel Industries 2000 (38) RLT 449 (CEGAT) : 2000 (92) ECR 445 (T), wherein it was observed that "the Modvat credit could not be denied on the ground that the Bill of Entry was not endorsed in favour of the assessee at the time of sale of goods by the importer in their favour was confirmed." In the instant case also, the appellants have placed on record copy of High Sea Sale Agreement entered into by them with the importer, M/s. Kothari Sale Agency. On the basis of that agreement, they paid the customs as well as CV duty which was accepted by the customs authorities and the goods were released to them. The customs authorities accepted the appellants as purchaser of the goods on the strength of High Sale Agreement and as such the formal non -endorsement of the Bill of Entry in their favour by the importer, could not be made the basis for disallowed the Modvat credit of the duty i.e. CVD, paid by them, on the goods.