Judgment:
1. In this appeal the noticee challenges Order-in-Appeal No.661/98 CE dated 18.9.98 whereby appellate authority confirmed Order-in-Original No.CX.29/96 dated 24.4.96. Above orders arose out of Show Cause Notice dated 7.2.1996. A far as the issue in this appeal is concerned the said Show Cause Notice disallowed Modvat credit on account of three irregularities mentioned therein. They are: (a) Invoice issued by M/s. The Tin Plate of India Ltd., listed at Sl.No.4 to 11 of the annexure are not authenticated, 2. The Learned Counsel representing the appellant submitted that invoices which were duly authenticated by the officers of the Excise department were made available to the DC, that RG23D Sl.No. was also furnished before the said authority as per communication dated 24.2.96 and that the failure to mention the amount in words was only a technical flaw and that nothing material turned out of it against the department.
3. I heard the learned SDR. The original invoices with the authentication of the departmental officer were made available to me by the learned Counsel representing the appellant for perusal. The learned departmental representative also got those invoices verified. According to her those invoices show due communication by the department.
Similarly the learned Counsel representating the appellant had their copy of authentication dated 24.2.96 sent to the department giving the details of RG23D pertaining to the invoices made mention of in the Show Cause Notice.
4. On going through the documents made available to me by the learned Counsel representing the appellant, which were submitted before the primary authority it is seen that the allegation of absence of authentication on the invoices and the absence of RG23D entries made mention of in the Show Cause Notice are factually incorrect. Had the primary authority perused the original invoices and the statement filed by the noticee on 24.2.96, it would have come to his notice that the two defects mentioned in the Show Cause Notice are non-existent.
Primary authority and the lower appellate authority proceeded on the basis that the invoices were endorsed ones and consequently the noticee was not entitled to avail Modvat credit.
5. This approach made by the authorities cannot be sustained because the Show Cause Notice did not make any allegation that the invoices were endorsed ones. In the absence of such averment in the Show Cause Notice the authorities below were clearly in error in basing their decision on the ground of the invoice being endorsed.
6. The third ground relied on by the authorities below for denying Modvat credit is that value and amount of duty are not mentioned in words. The value and amount of duty mentioned in figures in the document were correct figures. The department had no case that there was tampering with those entries, in numerical. Nor were they having a case that the figures mentioned therein were not correct. Absence of entry in words of the amount can only be termed as technical flaw.
Based on such a technical mistake substantive right of the party to get Modvat credit cannot be denied. So the absence of entry of value and amount of duty in words cannot be a reason for denying Modvat credit.
7. In view of what has been stated above, orders impugned in this appeal are set aside with consequential relieves to the appellant.
Consequential relieves must be extended to the appellant without any delay.