Judgment:
1. The issue in the appeal relates to the denial of Modvat credit in respect of goods which were received under the cover of the original invoice in view of the loss of duplicate invoice. The learned advocate for the appellant has pleaded that in the case of loss of the original gate pass, the notified document for Modvat purposes under Rule 57G, it has held that in the place of the document in question, a certified copy of the same could be accepted for the purpose of grant of Modvat credit. In this connection, he has referred to para 7 of the judgment of the Hon'ble High Court which is reported in 1995 (77) E.L.T. 521 in the case of Bombay Goods Transport Association v. Union of India. Para 7 is reproduced below for convenience of reference : "We find considerable merit in the said contention. As stated above by the impugned Circular it is clarified that the credit will not be allowed on the Certified Copy or Authenticated photocopy of the original Gate Pass. The said Circular does not disentitle the claimant from proving that duty has been paid on excisable goods used as inputs under the Rules." 2. The learned Advocate has pleaded that Board taking into consideration the ground realities to take care of loss of the prescribed document which at the relevant time was the duplicate invoice, has prescribed the original invoice as acceptable document for Modvat purposes subject to certain conditions and safeguards in that regard by issue of Notification 23/94, dated 20-5-1994. He has pleaded that in the case of the appellants, the goods were received under the cover of the original invoice before the issue of this notification. He has pleaded, however, the benefit of this notification could be given retrospectively, taking into consideration the decision of the Hon'ble Bombay High Court.
3. The learned JDR for the Department has pleaded that the learned lower authority has rightly denied Modvat, but fairly concedes that earlier in the case of loss of the original gate pass the prescribed document Tribunal in a number of cases where there was loss of the document has allowed benefit of Modvat credit on a certified copy of the original gate pass, subject to the verification regarding payment of duty.
4. I have considered the pleas made by both sides. I observe that the plea taken before the learned lower authority was that the duplicate invoice, the prescribed document under Rule 57G had been lost and the goods therefore had been received under the cover of the original invoice. Notification 23/94 referred by the appellants covers the contingency where the duplicate invoice gets lost subject to the verification regarding the payment of duty and other parameters prescribed therein and the Modvat credit can be allowed by the Assistant Collector. Earlier we find that the Hon'ble Bombay High Court in similar circumstances has allowed Modvat credit to be given subject to the verification regarding the duty paid character of the goods. The amendment of Rule 57G, no doubt came into effect from 20-5-1994, but the fact remains that the contingency of loss of a prescribed document has been taken note of and the same in line with the decision of the Hon'ble Bombay High Court referred to supra. Therefore notwithstanding the fact that the amendment came into effect after receipt of the goods in the appellants factory under the cover of the original invoice, the appellants claim for Modvat can be considered subject to the above.
5. In my view, the appellants may be entitled to a consideration of their case in the light of the Bombay High Court judgment and the parameters prescribed by Notification 23/94 amending Rule 57G. In the above view of the matter, I set aside the order of the lower authority and remand the matter to the original authority for de novo consideration of the decision in the light of the above.