Hon'ble Subhash Chandra Nigam,J.
This is a reference application under Section 35H (1) of the Central Excise Act, 1944.
Several questions have been raised but during the course of the argument, Sri A.P.Mathur, learned counsel for the applicant states that questions may be reformulated and he suggested that only question arises namely, whether the Tribunal is justified in disallowing the claim of Modvat Credit, even, though, it has not been disputed that input had been received and duty had been paid ?.
The brief facts of the case are that the applicant claimed the Modvat Credit on the basis of original copies of invoices under Rules 57-G of the Central Excise Rules (hereinafter referred to as ' the Rules' ). The said Modvat Credit has been disallowed on the ground that under Rule 52A and 57G (2A) of the Rules, the Modvat Credit could be claimed on the basis of the duplicate copy of invoice and not on the basis of the original invoice and therefore, the claim of Modvat Credit was in violation of Rule 52A and Rule 57G of the Rules. Asstt. Commissioner has further held that the applicant has wrongly availed the benefit of Rule 57G (2A) of the Rules and despite sufficient time was given to the assessee to produce duty paying documents but the same was not produced.
Being aggrieved by the said order, the applicant filed an appeal which has been dismissed by the Commissioner (Appeal) Custom & Central Excise, Ghaziabad vide order dated 3.7.98. Against the said order, the applicant preferred second appeal before the Tribunal which has also been dismissed by the impugned order dated 7.7.2000.
Before the Tribunal, the applicant contended that the duplicate copy (transporter's copy) of the invoice has been lost in transit and the matter may be remanded back to the Asstt. Commissioner for the consideration of aforesaid explanation. The Tribunal has refused to entertain the plea taken by the applicant on the ground that no such plea has been taken by the assessee before the Asstt. Commissioner.
We have heard Sri A.P. Mathur, learned counsel for the applicant and learned Standing Counsel for the department.
Rule 52A and Rule 57G and Sub-Rule (2A) of the Act read as follows:-
52A. Goods to be delivered on an invoice-(1) No excisable goods shall be delivered from a factory or a warehouse except under an invoice signed by the owner of the factory, or his authorised agent:
Provided that when the excisable goods, other than those to which the provisions of Chapter VII-A apply, are removed on payment of duty such invoice shall be required to be countersigned by the proper officer.
Explanation- In this rule, and in any other rule, where the term invoice or gate-pas, as the case may be, is used it shall mean-
(i) assesee's own document such as invoice, challans, advice or other document of similar nature generally used for the sale or removal of excisable goods and which shall contain all the particulars as required under the said Act or in these rules' or
(ii) such other form as the Central Board of Excise and Customs may notify.
(2) The invoice shall be made out in quadruplicate { The original copy shall be for the buyer , the duplicate for the transporter, and the triplicate shall retained by the manufacturer.} The manufacturer may make extra copies of the invoice for his own use and each such extra copy shall be clearly marked with its sequential number. The duplicate copy shall be produced by the transporter on demand by any officer while the goods are en route to such destination from the factory:
Provided that in respect of removal of excisable goods consumed within the factory for manufacturer of other goods in a continuous process, the manufacturer may make out a single invoice, at the end of the day:
Provided further that the any excisable goods, other than those to which the provisions of Chapter VII-A apply, the invoice shall be presented to the proper officer for counter- signature at least one hour before the actual removal of goods from the factory. After counter-signature the proper officer shall return all the copies of the invoice to the manufacturer except the triplicate required for his record.
{ (3) The copies of the invoices shall be marked at the top in bold capital letters in the following manner, namely:-
(i) the original copy shall be marked as ORIGINAL FOR BUYER;
(ii) the duplicate copy shall be marked as DUPLICATE FOR TRANSPORTER ( to be used for taking credit under Rule 57G and Rule 57T);
(iii) the triplicate copy shall be marked as TRIPLICATE FOR ASSESSEE.} Rule 57G- Procedure to be observed by the manufacturer._(1) Every manufacturer intending to take credit of the duty paid on inputs under Rule 57A, shall file a declaration with the Assistant Collector of Central Excise having jurisdiction over his factory, indicating the description of the final products manufactured in his factory and the inputs intended to be used in each of the said final products and such other information as the said Assistant Collector may require, and obtain a dated acknowledgement of the said declaration.
(2)A manufacturer who has filed a declaration under sub-rule (1) may, after obtaining the acknowledgement aforesaid, take credit of the duty paid on the inputs received by him;
{Provided that no credit shall be taken unless the inputs are received in the factory under the cover of a Gate Pass, an AR-1, a Bill of Entry or any other document as may be prescribed by the Central Board of Excise and Customs (constituted under the Central Board of Revenue Act, 1963 (54 of 1963) in this behalf evidencing the payment of duty on such input};
Provided further that having regard to the period that has elapsed since the duty of excise was imposed on any inputs, the position of demand and supply of the said inputs in the country and any other relevant considerations, the Central Government may direct that with effect from a specified date, all stocks of the said inputs in the country, except such stocks lying in a factory customs area { as defined in the Customs Act, 1962 (52 of 1962)} or a warehouse as are clearly recognisable as being non-duty paid may be deemed to be duty- paid and credit of duty in respect of the said inputs may be allowed at such rate and subject to such conditions as the Central Government may direct, without production of documents evidencing the payment of duty;
Provided also that the manufacturer shall take all reasonable steps to ensure that the inputs acquired by him are goods on which the appropriate duty as indicated in the documents accompanying the goods has been paid.
(2A) Notwithstanding anything contained in sub-rule (2), a manufacturer can take credit of inputs received in the factory on the basis of the original invoice, if the duplicate copy of invoice has been lost in transit, subject to the satisfaction of the Assistant Collector}.
(3)...............
(a)...............
(b)..............
{(4) A manufacturer of the final products shall submit to the Superintendent of Central Excise the original documents evidencing the payment of duty along with extracts of Parts I and II of Form RG-23A every month and the Superintendent of Central Excise shall, after verifying their genuineness, deface such documents and return the same to the manufacturer}.
{(5) Where a manufacturer was not in a position to make a declaration under sub-rule (1) and makes the declaration subsequently, the Assistant Collector may, for reasons to be recorded in writing, condone the delay in filing of such declaration and allow the manufacturer to take credit of the duty already paid on the inputs even though the procedural requirements laid down under this rule have not been complied with;
Provided that such permission may be granted by the Assistant Collector only when he is satisfied that the-
(a) inputs in respect of which credit of duty is to be allowed were received in the factory not before a period of six months from the date of filing such declaration and not before the date of notification issued under Rule 57A;
(b) amount of duty for which credit is sought have actually been paid on such inputs; and
(c) inputs have actually been used or are to be used in the manufacturer of final products}.
Admittedly, the applicant has claimed the Modvat Credit on the basis of the original copy of invoice and not on the basis of the duplicate copy (transporter's copy). Before the Asstt. Commissioner, no such plea has been raised by the applicant that the duplicate copy (transporter's copy) has been lost in transit and as such the benefit of Rule 57G(2A) has not been availed. The Asstt. Commissioner has also recorded the finding that sufficient time was given to the assessee to produce duty paying documents but the same was not done. Therefore, the Authorities have rightly held that the Modvat Credit was allowed in violation of Rule 52A and 57G of the Act. Since no plea has been taken by the applicant before the Asstt. Commissioner that the duplicate copy (transporter's copy) has been lost in transit, hence, the Tribunal has rightly held that such plea could not be considered at this stage.
We do not see any error in the view taken by the Tribunal in refusing to entertain such plea. In such circumstances, we do not see that any substantial question of law which is sought to be considered by this Court arises from the order of the Tribunal.
The reference is, accordingly, dismissed.
Order Date :- 7.1.2010 kkg