M/S. Visvesvaraya Iron and Steel Vs. Commssioner of Central Excise, - Court Judgment

Excerpt:

.....procedures including the question of eligibility of documents which are lost in transit has been well settled by larger bench decisions. the binding nature of board's instructions on the lower authorities also is no longer res-integra. this position of law is required to be considered by the lower authority alongwith the question of credit on original invoices, if the duplicate copy have been misplaced/lost during transit. no such findings have been arrived at by the lower authorities. their orders are therefore required to set aside, and matter remanded back for denovo consideration regarding the eligibility to the original authority for re-consideration of the claims of this public sector undertaking.5. in view of our findings the appeal is allowed by setting aside the order for denovo consideration by original authority.

Judgment:

1. This is an appeal filed by a Public Sector under-taking after obtaining the sanction to pursue their appeal from the Committee of Secretaries to Government of India.

2. We have heard the learned Advocates Shri.Nagraj and learned Advocate Shri.Rajeshwarashastry appearing for the appellants who have taken us through the findings in the impugned order, against which the appeal has been filed and have pointed out that: a) Board's Instruction No.CBEC/Telex F.No.212/3/94-CX.6 dt.2.5.94 which are applicable to the invoices in the present case for purposes of availing MODVAT credit during the period August'94 to June'94 has not been followed nor does the order give any findings as to why these instructions are not applicable.

b) Credit has been denied on original invoices on the grounds that the duplicate copy which are the eligible documents for availing credit, have not been produced. No findings have been arrived at by the lower authorities, that the goods were not duty paid or goods were not received in the premises. There is also no finding as to why the credit on original invoices cannot be availed, when the duplicate copy has been lost in transit.

3. Shri.Thomas George, JDR representing the Department, submits that for the relevant period, Notfn.No.23/94 would be applicable. This notification prescribes the eligibility of the documents for credit and credit on the subject invoices as claimed by the appellants is not eligible.

4. We have considered the submissions and find that the question of ineligible documents, procedures including the question of eligibility of documents which are lost in transit has been well settled by larger bench decisions. The binding nature of Board's Instructions on the lower authorities also is no longer res-integra. This position of law is required to be considered by the lower authority alongwith the question of credit on original invoices, if the duplicate copy have been misplaced/lost during transit. No such findings have been arrived at by the lower authorities. Their orders are therefore required to set aside, and matter remanded back for denovo consideration regarding the eligibility to the original authority for re-consideration of the claims of this Public Sector Undertaking.

5. In view of our findings the appeal is allowed by setting aside the order for denovo consideration by original authority.