Full Judgment
Krishna Enterprises, Bhilai under Rule 57G of the Central Excise Rules. However, even if it is considered an invoice issued under Rule 57GG, even then the serial no. is required to be printed in accordance with provisions of Sub-rule (5) of Rule 57GG. Sub-rule (5) was inserted vide Notification No. 2/95-C.E. (N.T.), dated 19-1-1995 and therefore, invoice issued on 6-5-1995 is expected to confirm to the provisions of Sub-rule (5) of Rule 57GG. Therefore, I do not agree with the contention of the appellant that pre-printing of invoice is required to be done under Notification No. 23/95-C.E. (N.T.), dated 30-5-1995, after the date of issue of that Notification only and that condition will not apply to their case as the invoice has been issued on 6-9-1995.1 agree with the views of Asstt. Commissioner that pre-printing of serial no. of invoice is a basic requirement under Central Excise Rules. Writing the serial no.
on the invoice by hand is fraught with possibility of danger to revenue as the same invoice number can be issued of use in invoices different consignees. The requirement of pre-printing serial no, on invoice issued under Rule 57GG is not a mere procedural requirement.
Since, the facts in the present case are different, the ratio of the cases relied upon by the appellant is not applicable to them.
Accordingly, the appeal is rejected and the impugned order of Asstt.
Commissioner, Agra is upheld as legal and-proper." 3. Ms. Khair claimed that for the mistake made by dealer the substantive benefit to the Modvat users should not be denied. In making this claim she relied upon the Single Member decision in the case of S.K. Industries v. Commissioner of Central Excise, Chandigarh, reported in 1997 (92) E.L.T. 216 (Tribunal). She also referred to another judgment in the case of Nahar Spinning Mills Ltd. v. Commissioner of Central Excise, Indore, reported in 1998 (97) E.L.T. 127 (Tribunal), In the first cited case the Tribunal found that the essential details as required in the Notification No. 15/94-C.E. (N.T.) were available in the invoice, although, not in the manner stipulated. In the second cited case some of the particulars on the invoice were written by hand.
It was held that this was not sufficient to deny the substantive benefit. The judgment does not cite the provision which was contraband by assessee. The concerned invoices were dated Nov./Dec, 1994. Learned JDR submits that the rule, the contravention of which was alleged in the present proceedings was introduced only later i.e. on 19-1-1995.
Therefore, the two judgments cited do not rule on the present dispute.
"Each invoice shall bear a printed serial number [running for the whole financial year beginning on the 1st April of each year.] Only one invoice book of [xxx] shall be used by the registered person for removal of excisable goods at any one time unless otherwise, specially permitted by the [Commissioner] in writing." A plain reading of the rule shows that both requirements are mandatory, although, the second requirement could be relaxed by the Commissioner.
This provisions deals that the persons who are dealers and who are issuing invoices. The degree of control of the Central Excise officers on such persons is minimal and certainly much less that exercised on the registered manufacturers. Therefore, the assurance that such dealers do not indulge in mal practice has to be made only through the provisions of law. If such provisions are not followed by the dealers, the result would be two fold. Firstly, the recipient manufacturer will be denied credit and secondly, the issuing dealer would become liable to penalty. It may be true that the department generally does not take any action against the issuing dealers. It is also correct that the credit is being denied to the user manufacturer for no fault of his.
But where the law is so specific, I may not be justified in ignoring the printed word and going into the area of speculation on the counts whether the goods were duty paid and whether they were received and used ect. The assessee is free to follow other modes of retribution against the erring suppliers.
4. I, therefore, uphold the orders of denial of Modvat credit in this situation. It is, however, correct that in such a situation there is no propriety in imposing penalty on the assessee who has already suffered from the lapse of the dealers. The orders of penalty are set aside. The appeal is thus, allowed in part.