Judgment:
1. The respondents in this appeal filed by the Revenue were availing of the facility of modvat credit.The credit taken by them under 129 documents totally amounting to Rs.13.58,143.14 was challenged.The allegation in the show cause notice was that the Gate passes were not in their name but were endorsed after 31.3.94.It is also claimed that the suppliers later endorsed invoices were not in their name.The Asstt.Commissioner confirmed the demand and also imposed penalty of Rs. One lakh.I his findings, he state that Not.No.16/94 CE which prescribed that the gate passes to become valid documents must have been issued prior to 1.4.94 and any gate pass endorsed subsequent thereto wold not be valid document.Accepting Not.Co.15/94 CE, he held that his enable modvat credit to be taken on the basis of invoice issued by dealers and the assessees taking the benefit under invoices issued by the manufactures was not in order.Against this order, the assesses filed an appeal. Before the Commissioner,it was argued that the endorsed gate passes were accompanied by the invoices issued by the dealers which invoices satisfied the conditions prescribed under the Notification N.15/94 CE. The Commissioner specifically observed that their mistake of mentioning only the gate pass member and not the invoice number would not deprive them of their statutory right.He observed that the invoices issued by the dealers must be taken up for this purpose.He observed that a specific circular of the Board supported this particular action.On his setting aside the lower order, this appeal was filed by the Revenue.
2. In the appeal memorandum, the legal position adopted by the Commissioner(Appeal) is not contested. What is contested is his observation that the dealers' invoice and the original document issued by the manufacturer put together indicate that the same goods were covered by the Notification.It is also claimed that the certain invoices are defective in as much as they did not show the minimum required particulars prescribed under notifn.No.15/94/CE.3. We have carefully considered the submissions. The Commissioner(Appeals)has allowed the appeal of the assesses on the ground that there exists co-relation between the manufacture's documents and the invoices of the dealers.This belief remains even if some of the invoices failed to show some of the particulars required to be shown.At this stage as far as the claim on the first 18 invoices involving modvat credit of Rs.1.14,606.25 is concerned, we find that in raising the ground, the Revenue is raising an entirely new ground which was not in the show cause notice.As regards the second branch of the argument involving modvat credit of Rs.2.16,217.29, we observe that the ground is of two folds.It is claimed that some of the gate passes are not backed by any Delivery challahs of dealers invoices.The second ground is as we already dealt with as above as to the first ground.We find that out of the 23gate passes mentioned in this ground, it is not specifically stated that in how many cases invoices or delivery challahs were not produced at all. From the Commissioner's order, it does not appear that failure existed in the case of any endorsed gate passes.The statement made in the appeal memorandum is vague and on this ground we cannot accept the view of the Asstt.Commissioner.
4. Thus we find no worthwhile ground in this appeal and it is dismissed.