G.M. (FIN.), BHARAT ALUMINIUM Vs. CCE

JUDGEMENT

(1.) Heard both sides.

(2.) Ld. Advocate is pleading that the show -cause notice contains objections regarding invoices being defective or improper specifically with reference to not containing the pre -printed serial numbers. The annexures to the show -cause notice talks about the consignment being diverted by the manufacturer from original consignee to the appellants and, therefore, being ineligible document for modvat credit. The appellants pleaded that the main objection of the show -cause notice contains only objection relating to the invoices being improper document for want of having pre -printed serial numbers. The other objection which is listed in the body of the annexures was not mentioned in the main body of the show -cause notice. However, during the personal hearing before the Commissioner (Appeals), who adjudicated the matter, these objections were also conveyed and the appellants allegedly refuted the allegations. The objection in the annexures to the show -cause notice was also challenged in a post -hearing not sent to the Commissioner. However, before the said note could reach the Commissioner, the impugned order was passed by the Commissioner. It is obvious from the appellant's submissions regarding the objection of the consignment being diverted and documents being improper, have not been taken on record in the impugned order. In the interest of justice, it would be proper for the Commissioner to examine the contents of the challenge, which was addressed during the personal hearing and followed also by post -hearing note, to this aspect contained in the annexures to the show -cause notice. Ld. Counsel also pleaded that the objection in the body of the show -cause notice also is without any merit in terms of several pronouncements of the Tribunal holding that where the duty paid nature, and the use of the input, are not in doubt, the credit cannot be denied. The appellants have also pleaded that the issue regarding admissibility of Modvat credit in respect of Asbestos packing, also has been decided by the Tribunal in the case of Modi Sugar Mills v. CCE, Meerut, 2002 (150) ELT 241 (Tri -Del). The Ld. SDR reiterates the findings of the Commissioner claiming that the annexures to the show -cause notice also was part of the show -cause notice and rejection of the claim on that ground was proper. 2. On considering the rival submissions, I feel that the appellant deserves to be given a chance of fresh hearing on merits with reference to the post -hearing submissions to the show -cause notice challenging the grounds in the show -cause notice as well as those appearing in the Annexure, as explained in their post hearing note which reached the adjudicating authority after the passing of the impugned order. The order also does not spell out, as to why, the impugned invoices could not be accepted as valid documents for extension of Modvat credit, which prima facie appear to be eligible documents, notwithstanding the defects that these do not bear the pre -printed serial numbers. In the interest of justice, the matter needs to be examined afresh after considering defence arguments submitted by the appellants.

(3.) Accordingly, the appeal of the appellants is allowed by way of de novo remand. The Commissioner shall pass fresh orders after affording reasonable opportunity to the appellants to contest the issue relating to inadmissibility of the invoices, which had been endorsed in their favour by the manufacturer and pass orders thereafter in accordance with law.