Tirupati Fibres and Industries Vs. Commissioner of C. Ex. - Court Judgment

Excerpt:

.....consignee. this consignment in its original packing, however, was sent to a dealer who in turn endorsed the invoice and consigned it to the manufacturer consignee for whom it was cleared from the original manufacturers factory. it was initial period of change over of invoice system. even then, the consignment was not opened by the dealer but was sent in original packing to the manufacturer. the consignment, in fact, went from manufacturing factory to the consuming factory. he submits that tribunal in case of tumkur conductors pvt. ltd. v. c.c.e., bangalore - 1997 (96) e.l.t. 595 (tribunal) held that endorsed invoice was eligible documents since invoice was only a substitute for gate pass and endorsed gate passes are valid documents for taking modvat credit.3. ld. dr submits that while tribunal may have ruled in favour of the assessee, tribunal in number of cases reported in 1997 (22) rlt 172 : 1998 (24) rlt 270 (cegat) has denied credit in such cases.4. heard both sides. tribunal in case of tumkur conductors pvt. ltd. observed that at the relevant time there was some confusion as to the acceptability or otherwise of the documents which were issued prior to 1-4-1994 as also.....

Judgment:

1. This application seeks waiver of pre-deposit of Rs. 1,93,934/-held to be inadmissible Modvat credit.

2. Arguing in support of application, the ld. Consultant submits that the appellants issued an invoice dated 25-4-1994 for a consignment which was intended for the use of the manufacturer consignee. This consignment in its original packing, however, was sent to a dealer who in turn endorsed the invoice and consigned it to the manufacturer consignee for whom it was cleared from the original manufacturers factory. It was initial period of change over of invoice system. Even then, the consignment was not opened by the dealer but was sent in original packing to the manufacturer. The consignment, in fact, went from manufacturing factory to the consuming factory. He submits that Tribunal in case of Tumkur Conductors Pvt. Ltd. v. C.C.E., Bangalore - 1997 (96) E.L.T. 595 (Tribunal) held that endorsed invoice was eligible documents since invoice was only a substitute for gate pass and endorsed gate passes are valid documents for taking Modvat credit.

3. Ld. DR submits that while Tribunal may have ruled in favour of the assessee, Tribunal in number of cases reported in 1997 (22) RLT 172 : 1998 (24) RLT 270 (CEGAT) has denied credit in such cases.

4. Heard both sides. Tribunal in case of Tumkur Conductors Pvt. Ltd. observed that at the relevant time there was some confusion as to the acceptability or otherwise of the documents which were issued prior to 1-4-1994 as also to the modalities of the invoices issued by the manufacturers and dealers. The Tribunal held that inasmuch as the invoice was a substitute document for gate pass after 1994 what would be applicable to the gate pass would be equally applicable to the invoices. Even assuming that there was difference of opinion between different benches, it would itself be a valid ground for relief at this prima fade stage, particularly considering that it is not alleged that appellants are not otherwise eligible to benefit of Modvat credit.

5. In view of this, I allow the waiver of pre-deposit of the impugned amount and stay recovery thereof.

6. Both sides would be at liberty to move applications for early hearing, if they consider necessary.