CENTURY N.F. CASTING Vs. CCE

JUDGEMENT

(1.) In these two appeals filed by M/s. Century N F casting, the issue involved is whether the Modvat credit can be availed of on the basis of declaration made on the Bill of Entry in the Customs House itself for transferring the goods to the Appellants by the importer.

(2.) Shri K.K. Anand, learned Advocate submitted that the Appellants manufacture Aluminum alloy; that the principal raw material is aluminium scrap, which was purchased by them during the relevant period from M/s. Multi Metal Udyog, a dealer registered with Central Excise department; that M/s. Multi Metal Udyog had imported Aluminium scrap at Internal Container Depot at Ballabgarh; that the dealer gave a declaration to the Customs Authority that the entire material had been sold to the appellants; that accordingly Appraiser of Customs made the endorsement that the entire quantity of material has been sold/transferred to the Appellants; that the Appraiser of the Customs made the endorsement on the Bill of Entry to the effect that entire quantity of material sold/transferred to the Appellants against transporters GR No., and date, that the goods were despatched directly from the ICD to their factory under triplicate copy of Bill of Entry and invoices issued by M/s. Multi Metal Udyog, that the invoices were marked "non -modvatable" in view of the fact that triplicate copy of Bill of Entry, duly endorsed by the proper officer of the Customs, was to be used for availing Modvat credit in terms of Board's Circular No. CX dated 13.2.95; that the Department has disallowed the Modvat credit and imposed penalty on the ground that Modvat credit cannot be availed on the basis of endorsed Bill of Entry. The learned Advocate, further, submitted that the Modvat credit can be availed of on the strength of endorsed Bill of Entry that it has been clarified by the Board in Circular No. CX dated 13.2.95 that where an entire consignment is sold out from the dock, the triplicate copy of Bill of Entry duly signed and stamped by the proper officer of Customs can be used for the purpose of availing Modvat credit by the user; that the Circular further mentions that in such a situation, the proper officer will also endorse/attest the duplicate and triplicate copies of Bill of Entry giving therein details of the consignee and the triplicate copy of the Bill of Entry will also serve as a covering/transport document; that the Board again vide Circular No. 1/79/13/96 CX dated 29.2.96 has clarified that whether the imported goods are in Customs dock area and the manufacturer/importer decides to divert the goods, a declaration by the importer can be made on the reverse of the triplicate copy of the Bill of Entry that the consignments are being delivered to the unit (name of the unit) for availing the credit and endorsed by the proper officer of the Customs for enabling the manufacturing unit to avail the credit; that further, the Commissioner of Customs (Imports), Mumbai, under Public Notice No. 19/2000 dated 11.2.2000 clarified that where an entire consignment is still in docks, is transferred to a manufacturer directly from the docks, modvat credit would be available provided declaration and endorsement by the dock Appraiser is made on the duplicate copy of Bill of Entry and generated at EDI system. The learned Advocate contended that this shows that the instructions of the Board relating to availability of Modvat credit on endorsed Bill of Entry contained in Circulars dated 13.2.95 and 29.2.96 are still in force. Finally, he relied upon the decision in the case of CCE Chandigarh v/s. JCT Ltd., : 2003 (151) ELT 508 (P&H) wherein Punjab and Haryana High Court has held that triplicate copy of Bill of Entry endorsed by the importer in favour of the assessee would be a valid duty paying document (after referring to paragraph 4 of the Circular dated 28.2.96). Reliance has also been placed on the decision in the case of CCE Tricky v/s. Tricky Steel Rolling Mills, 2002 (48) RLT 839 CEGAT and CCE, Jamshedpur v/s. TISCO, 2001 (137) ELT 562 (Tri).

(3.) Countering the argument Ms. Charul Barnwal, learned Senior Departmental Representative, submitted that under the provisions of Rule 57 G of the Central Excise Rules, 1944 Modvat credit can be availed of if the inputs are received in the factory accompanied with specific duty paying documents; that endorsed Bill of Entry is not a specified documents evidencing payment of duty; that M/s. Multi Metal Udyog, who were the registered dealer for supply of impugned material, has issued the invoice which clearly bear the stamp "non -modvatable"; that invoices issued by the Registered dealer is the specific document which is a non -modvatable invoice and as such the Appellants could not have taken the Modvat credit; that Notification No. Central Excise NT dated 23.7.96 has amended Rule 57G and therefore, the instructions issued earlier would not be applicable to the amended Rule. She relied upon the decision in the case of Tata Iron and Steel Co. Ltd. v/s. CCE, Jamshedpur, : 2001 (137) ELT 761 (Tri) wherein the Modvat credit was held not to be available in respect of endorsed Bill of Entry.