Judgment:
1. This appeal arises from order in appeal dated 7-8-1996 passed by Commissioner (Appeals), Ghaziabad. The issue in this appeal lies in a short compass. The lower authorities proceeded against the appellant on the ground that they were not entitled to utilise Modvat credit under Rule 57Q of Central Excise Rules, 1944 in respect of capital goods as stated in the impugned order. The second ground on which they proceeded to deny was that the appellant had not produced the duplicate copy of invoice and Modvat credit cannot be granted against the original invoice. On the first ground, with regard to eligibility of Modvat credit in respect of capital goods, the Commissioner in the impugned order has held that the Modvat credit cannot be denied on the said items. Therefore, on merits, the appellants have succeeded and the Revenue has not filed any appeal or Cross appeal in this case. The only ground on which the appeal has been filed is that Modvat credit on original copy of invoice cannot be granted and the ld. Commissioner in the impugned order has observed that such provisions are available in the case of Modvat credit on the inputs under Rule 57G but no statutory provisions for allowing Modvat credit were available at the relevant time in respect of Modvat credit on capital goods. He held that Modvat credit on original copy of invoices would not be available to the appellant and on this short ground he dismissed the appeal.
2. We have heard both sides in this appeal. Ld. Advocate pointed out that the ld. Commissioner has not examined the provisions specially Rule 57G(2A) as well as Rule 57T Sub-rule (3) which clearly provides "notwithstanding anything contained in Sub-rule (2) of 57G manufacturer can take credit of the 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 Asstt. Commissioner". Ld.
Advocate also pointed to Sub-rule (3) of 57T which states as follows : "No credit of specified duty shall be taken unless such capital goods are received in factory premises of the manufacturer under the cover of invoice or a Bill of Entry or any other document as may be specified under Rule 57G evidencing the payment of duty on such capital goods : Provided that, the Asstt. Commissioner may allow, on sufficient cause being shown, the manufacturer to take credit of the specified duty on capital goods, paid by a contractor or job worker who undertakes the job of initial setting up, renovation, modernisation or expansion of the plant on behalf of the manufacturer of final products, subject to such procedure and conditions as the Commissioner of Central Excise or Central Board of Excise and Customs may prescribe." 3. Ld. DR accepts the legal position pointed out by ld. Advocate and submitted that the matter could be remanded to the original authorities for de novo consideration and the appellants may satisfy the Asstt.
Commissioner about the loss of the duplicate copy of the invoice.
4. I have carefully considered the submissions made by both the sides and have perused the records. It is very clear that the ld.Commissioner has overlooked the provisions of law as pointed out by ld.Advocate. It is very clear from Rule 2A of Rule 57G that a manufacturer can take credit on the basis of original invoice if the duplicate copy of invoice had been lost in transit, subject to the satisfaction of Asstt. Commissioner. Rule 57T which deals that taking of Modvat credit in respect of capital goods also lays down in Sub-rule (3) about the utilising Modvat credit under the cover of invoice or a Bill of Entry or any other document; as may be specified under Rule 57G evidencing the payment of duty on such capital goods. It follows from the reading of Sub-rule (3) of 57T that there is no emphasis on duplicate copy of invoice but merely states that no credit of specified duty shall be taken unless such capital goods are received in factory premises of the manufacturer under the cover of invoice or a Bill of Entry or any other document as has been specified under Rule 57G evidencing the payment of duty on such goods. The appellants have produced the original invoice itself. It thus satisfies the terms of Sub-rule (3) of Rule 57T, as there is a mention for supply of capital goods under the cover of invoice or a Bill of Entry or any other document as has been specified under Rule 57G. It also follows that an original invoice can be accepted in absence of a duplicate invoice. On a reading of Sub-rule (3) of Rule 57T, it is also clear that there is no emphasis of production of duplicate invoice, as there is mention only of the goods being received under the cover of invoice or a Bill of Entry. In absence of these documents, any assessee can produce any other document as may be specified under Rule 57G. In the present case, original invoice itself has been produced as a supporting evidence for loss of duplicate invoice. Therefore, there is no cause to hold that there is no provision in the Rules or about the non-satisfaction of the documents produced. The impugned orders suffer for an infirmity and is required to be set aside. In that event of the matter, the impugned order is set aside and the appeal is allowed. The original authorities is directed to grant the Modvat credit to resatisfaction of the documents in the light of the observations made in this appeal.