Full Judgment
Chayya Corporation (supplier of inputs), on the strength of which the credits totalling to Rs. 66,595/- had been taken, did not bear the marking, "duplicate for transporter". The Bench, however, did no examine this aspect while holding that the above credit was admissible to the assessee. The only question that was considered by the Bench in the context of determining the admissibility of the above credit was whether the credit was liable to be allowed on blue copies of supplier's invoices. The applicant submits that the non-consideration of whether the marking "duplicate for transporter" was there or not on each of the invoices issued by M/s. Chayya Corporation is a mistake apparent from the record which requires to be rectified.
2. Ld. JDR reiterates the grounds of this application and submits that, in respect of the credit of Rs. 66,595/-, the show-cause notice had inter alia alleged that the relevant invoices did not bear the marking "duplicate for transporter". This allegation was denied by the assessee in their reply to the show-cause notice. This dispute was duly examined by the original authority. That authority recorded a finding that the invoices had not been marked "duplicate for transporter" when the documents were used by the assessee for taking the credit. The original authority found that it was only after taking the credit that the assessee marked the invoices as "duplicate for transporter". The lower appellate authority affirmed the decision of the original authority.
The ld. DR, therefore, submits that, in respect of the above Modvat credit/the final order passed by this Bench is erroneous inasmuch as the above vital aspect was not considered by the Bench.
3. Ld. Counsel for the respondents in this application submits that he is ready to adduce evidence to show that it was the suppliers themselves who marked the invoices as "duplicate for transporter" and not the assessee as found by the original authority. Ld. Counsel submits that a certificate issued by M/s. Chayya Corporation was produced before the adjudicating authority to show that the marking "duplicate for transporter" was made on the invoices only by them. Ld.
Counsel submits that if such evidence is taken into account, the credit of Rs. 66,595/- will still be admissible to the assessee. He prays for dismissal of the present application.
4. I have carefully examined the record and the submissions made today.
It appears that, as rightly pointed out by ld. JDR, the show cause notice has inter alia alleged that the invoices of M/s. Chayya Corporation did not bear the marking "duplicate for transporter". In their reply to the show-cause notice, the assessee denied this allegation and pleaded that the suppliers themselves had rubber-stamped the mark "duplicate for transporter" on their invoices. They also produced the supplier's certificate before the adjudicating authority.
After examining all the available evidences, the adjudicating authority recorded a finding that, at the time of availment of the Modvat credit in question, the invoices of M/s. Chayya Corporation did not bear the mark, "duplicate for transporter" and that such mark was subsequently rubber-stamped by the assessee. In the absence of any copy of the memorandum of the appeal preferred by the assessee to the Commissioner (Appeals), I am unable to ascertain whether this finding of the original authority was challenged by the assessee before the lower appellate authority. The fact, however, is that all the findings of the original authority were upheld by the lower appellate authority. In the assessee's appeal before the Tribunal, this Bench rendered a decision in favour of the assessee in respect of the above credit of Rs. 66,595/- after holding that the colour of the invoice was immaterial in the context of availing credit. Whether the invoices were marked "duplicate for transporter" as required under the relevant rule was not examined by the Bench though that question was very much live in the case. In this view of the matter, the final order ibid is patently erroneous in relation to the Modvat credit of Rs. 66,595/-. As in an application of this kind, I cannot add to the record, I am not inclined to allow the Counsel to adduce any additional evidence. The only concern of the Bench, at present, is whether the mistake pointed out in this application is one apparent from the record, and I have found it to be so. This application is allowed. Accordingly, sentences 4 to 7 in the first para of Final Order No. A/372/2002-NB (SM) will stand deleted and the following new paragraph [to be numbered as 1(a)] will stand inserted after paragraph No. 1: '1(a) This appeal further involves the Modvat credit of Rs. 66,595/-availed on the basis of invoices of two different colours white & blue. The show-cause notice dated 17-5-95, alleged that the issuance of invoices in different colours for Modvat purposes is contrary to well established practice of trade and further that the invoices did not bear the mark, "duplicate for transporter". As regards the first allegation, it is observed that, under the rules, there is no particular scheme of the colours prescribed to be adopted by the manufacturers/traders in respect of the invoices issued by them. However, with regard to the second allegation, it has to be noted that Rules 52A and 57GG specifically prescribed that Modvatable invoices shall be marked "duplicate for transporter". The invoices issued by M/s. Chayya Corporation (supplier of inputs), on the strength of which the above credit of Rs. 66,595/- had been taken by the assessee, did not bear the mark "duplicate for transporter" as found by the original authority. The finding of the original authority has been upheld by the lower appellate authority.
There is no evidence on record to dislodge this finding. Therefore, it has to be held that the entire credit mentioned above was taken on the strength of invoices which did not bear the mark "duplicate for transporter" and it was not possible to ascertain whether the proper and valid duty-paying documents had been utilized by the assessee for availing the credit. Therefore, , the credit of Rs. 66,595/- appears to have been correctly denied by the authorities below." 5. The following further consequential amendment is also hereby made in para-2 of the Final Order :- For the words and figures "the appeal relating to the Modvat credit of Rs. 66/595/- is allowed", the words and figures "the appeal relating to Modvat credit of Rs. 66,595/- is rejected" shall be substituted.
6. Final Order No. A/372/2002-NB (SM), dated 7-3-2002 stands amended as above and will be so read.