MEDOPHARM Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal of the assessee is against denial by the lower appellate authority, of Modvat credit of Rs. 1,01,843/ - on inputs for the period December, 1993 to September, 1994. The relevant particulars of this denial, as found in the Order -in -Original, are reproduced below:

(2.) CREDIT of Rs. 41,616/ - was taken on the basis of photocopy of the original copy of the relevant invoice. Similarly credit of Rs. 5,625/ - was taken on the basis of photocopy of the original copy of the relevant invoice. These credits are not admissible to the assessee as rightly held by the lower authorities inasmuch as original copy of invoice was not a valid document for Modvat purpose as held by the Tribunal's Larger Bench in the case of CCE v. Avis Electronics Pvt Ltd. reported in 2000 (69) ECC 272 (Tri. -LB) cited by the learned SDR. Credit of Rs. 6,794/ - was taken on original copy of the relevant invoice. This credit is also not admissible in view of the Larger Bench decision. Credit of Rs. 2,734/ - was taken by the assessee on the strength of dealers invoice dated 4 -7 -94. It was on 4 -7 -94 that Rule 57GG was inserted in the Central Excise Rules, 1944 providing for issue of modvatable invoice by dealer. This Rule laid down the manner in which such invoice should be issued by the dealer, who must get registered with the Department in terms of Rule 174 of the said Rules. M/s. Noble Chemie who issued the above invoice was not so registered with the Department. This aspect, however, is not fatal to the assessee inasmuch as the time for such registration was extended by the Central Government up to 30 -12 -1994 through subsequent Notifications. It is pertinent to note that the above invoice was issued on the very date on which provision was made by the Central Government laying down the manner in which modvatable invoice shall be issued by a dealer. Obviously, M/s. Noble Chemie while issuing the above invoice dated 4 -7 -94 were not aware of such provision having come into force on the same day. Upon perusal of this invoice produced by the learned Consultant, I find that this invoice contain all the requisite particulars such as rate of duty, amount of duty, tariff heading etc. as also particulars relating to the relevant Bill of Entry. Admittedly, the input supplied to the assessee under the above invoice by M/s. Noble Chemie was part of an imported consignment. The Revenue has no case that this input was not received and utilized in the manufacture of final product in the assessee's factory, nor have they disputed the duty -paid nature of the goods. In the circumstances, the credit of Rs. 2,734/ - is admissible to the appellants. Credits of Rs. 1,325/ -, Rs. 7,344/ -, Rs. 2,075/ - and Rs. 100/ - were taken on the basis of commercial invoices issued on 28 -7 -94, 23 -9 -94, 13 -7 -94 and 25 -6 -94 respectively. These invoices were issued by dealers and such issue was long after Rule 57GG appeared on the statute book. Obviously, the dealers who issued the invoices ignored the provisions of this Rule. Hence the consideration given to dealer's invoice dated 4 -7 -94 cannot be given to these invoices. These invoices were not documents specified under Rule 57G for Modvat purpose. Hence, following the ratio of the decision in CCE v. Shasun Chemicals and Drugs Ltd. reported in 2001 (76) ECC 42 (Tri.) cited by the learned SDR, I hold that the credits taken by the assessee on the strength of the above invoices are not admissible to them. Credit of Rs 2,560/ - was denied to the assessee by the lower authorities holding that it was not admissible on account of a commercial invoice having been used for the purpose. I have seen a copy of this Invoice No. 168, dated 3 -9 -94 issued by M/s. Ajit Foils and Allieds (dealer). Though this document does not contain mention of Rule 57GG or other provision of the Central Excise Rules, 1944, it contains all the requisite particulars prescribed under the provision. This invoice also contains all the particulars relating to the goods received by the dealer from the manufacturer. It was wrong on the part of the lower authorities to have treated this invoice as a commercial invoice simpliciter. This invoice satisfying the requirements of Rule 57GG merits consideration as a regular invoice of the dealer modvatable under Rules 57A and 57G. Hence credit of Rs 2,560/ - taken by the assessee on the strength of this document is allowed to them.

(3.) IN the result, the appeal is allowed to the extent of granting of Mod -vat credits of Rs. 2,734/ -and Rs. 2,560/ - to the assessee.