Judgment:
1. Learned Counsel stated that the main issues involved in this case is as to whether the Modvat credit taken on the basis of the documents in dispute had been correctly availed of in view of the Notification No.15/94 which allows credit to be taken on the basis of prescribed documents provided they had been issued before 1-4-1994 and the endorsements are made before 30-6-1994 and the credit is taken on or before 30-6-1994.
2. It was their submission that the factual position in respect of these documents is as per the tabulated particulars which are being filed before the Court now with a copy to the other side.
(i) GP 1 issued before 1-4-1994 to the depots of the manufacturers but the endorsements by the Depots made after 1-4-1994 and received by the appellants directly from the depots.
(ii) GP 1 issued by the manufacturers before 1-4-1994 to registered dealers and received by the appellants through the trading channels by way of endorsements made after 1-4-1994, but the credit taken before 30-6-1994.
(iii) The original gate passes issued before 1-4-1994 but the subsidiary gate passes issued by the Superintendent of Central Excise after 1-4-1994 but the credit taken before 30-6-1994.
(iv) The invoices issued by the depots after 1-4-1994 with reference to GP 1 showing the dates prior to 1-4-1994 and received by the appellants and credit taken before 30-6-1994.
4. It was their contention that the issue has already been settled by the Tribunal in the case of Moosa Haji Patrawala v. Collector of Central Excise, Bombay reported in 1996 (83) E.L.T. 620 (Tribunal) and, therefore, it is their prayer that the ratio thereof may be applied to this case also.
5. Learned DR stated that in these cases gate passes were issued before 1-4-1994 but the endorsements were made after this date and there is no dispute about credit having been taken before 30-6-1994. However, in respect of the items shown in the order-in-appeal as gate pass at Sl.
Nos. 3 to 5, 7 and 16 of annexure to the show cause notice (the photo-copies of which have been produced) he observed that the documents had been endorsed in favour of the party, but the dates of these endorsements were not clear and, therefore, the factual position will have to be verified with reference to the original documents before it could be said whether the observations of the Commissioner in Paragraph 5 of order-in-appeal were factually correct or incorrect.
6. As regards Item Nos. 12 and 20 i.e. Invoice No. 5071, dated 23-5-1994 and Invoice No. 5049, dated 10-5-1994, the copies of the invoices produced do not indicate all the particulars and information which was required to be indicated in terms of the Notification 15/94.
7. In the remaining cases, it is true that the GP 1 had been issued before 1-4-1994 although endorsements had been made by the depots or dealers or the subsidiary gate passes had been issued by the Superintendent after 1-4-1994. However, there is no dispute that credit had been taken before 30-6-1994 and it is true that the basic issue in this regard is covered by the order in the case of Moosa Haji Patrawala v. Collector of Central Excise, Bombay 8. I have considered the above submissions. I observe that both sides are right in pointing out that the basic issue has already been settled by the Tribunal's order in the case of Moosa Haji Patrawala (supra) and, therefore, in the case of gate passes issued by the manufacturers prior to 1-4-1994 but endorsements made by the depots/registered dealers/by way of issue of subsidiary gate passes/certificates issued by the Superintendent subsequent to this date, in cases where credit was taken before 30-6-1994 the Modvat credit was available and can be considered having been rightly taken in the present case.
9. In respect of Sl. Nos. 3 to 5,7 and 16 (supra) of annexure to the show cause notice as rightly mentioned by the learned DR, the factual position requires verification to which the learned Counsel agrees and, therefore, in respect of these Sl. Nos., the matter is required to be remanded for necessary verification and thereafter passing appropriate orders in the light of the above principle.
10. In respect of Invoices No. 5049 and 5071 (supra) have issued that admittedly the full particulars required to be indicated as per the Notification 15/94 are not there and, therefore, the benefit cannot be allowed.
11. The order of Commissioner (Appeals) is modified accordingly and the appeal disposed of in the above terms.