UNION OF INDIA Vs. KATARIYA WIRES LTD

JUDGEMENT

(1.) This appeal has been filed under the provisions of S. 35-G (2) of the Central Excise Act 1994 (for short the ACt) against the order of Customs Excise & Service Tax Appellate Tribunal (CESTAT) dated 12.9.03 in No. A/1530/03/NB/SM by which the Tribunal has held that even on the strength of a certified copy of the invoice issued by the jurisdictional Superintendent, the modvat credit can be claimed. In he appeal the following question of law has been formulated:

(2.) It is not disputed that the respondent assessee had used excise duty paid items as inputs. The A.O. rejected the claim on the ground that by producing the certified copy of the invoice issued by the jurisdictional Superintendent, the requirement of Rule 57G of the Central Excise Rules 1944 (for short the Rules) was not fulfilled and, therefore, credit could not be granted. Rule 57G inter alia requires production of the original copy marked as original of which duplicate shall be marked as duplicate for transporter. The assessee claimed that both the original and duplicate copies were lost by the transporter in transit of the goods with the result the same could not be produced in accordance with the requirement of Sub.S.3 of Rule 52-A of the Rules in which Clause (i)(ii) thereof provided that the original copy being marked as original and duplicate as duplicate for transporters. The Assessing Officer rejected the claim for modvat credit holding that modvat can be allowed on original invoice if duplicate is lost in transit but there is no provision under Rule 57G of the Rules, if both copies lost in transit for production of certified copy.

(3.) Aggrieved by the order passed by the Dy.Commissioner of Central Excise, Ratlam, the respondent assessee preferred an appeal before the Commissioner (Appeal II) Indore who vide his order dated 28.3.03 (Ex.P II) set aside the order in original petition and held that Resp. No.l was eligible for modvat credit on the invoice certified by the jurisdictional Superintendent of Central Exicse. It was observed that the department had not disputed the receipt of goods, their use in manufacture of final product and duty paid character of the inputs. The department, therefore, carried the matter further in appeal to CESTAT. The CESTAT agreed with the finding recorded in appeal by the Commissioner and dismissed department's appeal. It is against this order that the present appeal has been filed.