(1.) THE issue involved in this Appeal filed by Revenue is whether Modvat credit was available to the respondents M/s. HCL Infosystems Ltd. on the strength of invoice which were not in accordance with the law.
(2.) SHRI Rajeev Tondon, ld. Senior Departmental Representative submitted that the Modvat credit of the duty paid on the inputs can be availed of only if the inputs are received under the cover of duty paying documents; that the respondents had taken credit on the basis of invoices which did not contain entire information as required or were defective; that the Commissioner (Appeals) has listed such 15 short comings in the impugned Order; that some of the short comings are duplicate copy of invoice was of yellow colour instead of pink colour as required under Rule 57GG, the date and time of removal of goods not mentioned, duty per unit of goods not mentioned, rate of duty not mentioned, vehicle registration no not written in the invoice, invoices are written without using carbon paper, etc. He, further, submitted that the Commissioner (Appeals) has allowed the Modvat credit to the respondents considering these lapses as minor procedural lapses and on the ground that invoices had been duly authenticated by the proper officer; that these lapses are not minor procedural lapses; that all these requirements have been prescribed under Notification; that Notification No. 3/95 C.E. (NT) dated 30 -5 -95 prescribed that the colours of the invoices shall be white, pink, yellow and green respectively for original, duplicate, triplicate and quadruplicate copies; that the various details to be mentioned in the invoices were also prescribed by the said Notification; that it is settled law that any exemption notification has to be interpreted strictly and not liberally. These requirements prescribed by Notification are mandatory in nature and if any invoice did not contain any of these information, it is not valid duty paying documents on the basis of which Modvat credit can be claimed. He relied upon the decision of the Larger Bench of the Tribunal in the case of Commissioner of Central Excise, New Delhi v. Avis Electronics Pvt. Ltd. - 2000 (117) E.L.T. 571 (Tri.) wherein it was held that "insistence on documents evidencing payment of duty on the inputs as prescribed by Rules is not a technality to be complied with for availing of the Modvat credit... 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." He therefore, contended that as the invoices in question were not as prescribed by Notification, the respondents were not eligible to avail the Modvat credit.
(3.) OPPOSING the Appeal Shri M.P. Devnath, learned Advocate, submitted that it is not the case of the Revenue that the inputs mentioned in the invoice in question have not been received by the respondents; that further it has also not been alleged that appropriate duty has not been paid in respect of inputs received under the cover of the invoices in question; that all the discrepancies mentioned in the show cause notice are of technical nature which are also very minor in nature; that in their own case the Appellate Tribunal vide Final Order No. A -1293/2002 -NB (S), dated 17 -10 -2002 has allowed the Modvat credit though the invoice was not of pink colour, following the Board's Circular No. 441/7/99 CX, dated 23 -2 -99. He also relied upon the decision in the case of Commissioner of Central Excise, Kanpur v. M/s. Good -lass Nerolac Paints Ltd. - Final Order No. A/1281/2002 -NB (S), dated 18 -10 -2002. Reliance has also been placed on the decision of the Larger Bench of the Tribunal in the case of Kamakhya Steel Pvt. Ltd. v. Commissioner of Central Excise -2000 (121) E.L.T. 247.