Crazy Candies and Sweets P. Ltd. Vs. Commissioner of C. Ex. - Court Judgment

Excerpt:
1. arguing on the application for waiver of pre-deposit of rs. 95,653.50, learned counsel, shri gopal prasad submits that credit of this amount has been denied on two counts, (i) a sum of rs. 74,623.50 has been denied on 4 invoices for the reason that they were not marked as "duplicate for transporter" but were only marked as "carrier copy" and (ii) credit of rs. 21,030/- has been denied on the ground that the 5 invoices on the strength of which this credit has been taken were not clearly marked as duplicate copy for transporter as they were simply marked by pen. it is not the proper way of marking as per rule 52a of the central excise rules. learned counsel submits that the carrier copy means nothing other than duplicate for transporters because a carrier is transporter and, therefore, this amount of credit has been rightly availed. regarding the amount covered at sl. no. (ii) above, he submits that when the invoice contained the marking - "original for buyer", "duplicate for transporter", "triplicate for excise department" and "quadruplicate for office copy" and what has been admittedly marked is the phrase "duplicate for transporter", credit has been rightly availed by the applicants. he, therefore, prays for waiver of pre-deposit and stay of recovery of the amount in question.2. learned dr draws attention to the impugned order and submits that since the invoices were not marked as duplicate for transporter, credit of rs. 74,623.50 has been wrongly availed. as far as ticking by pen the expression "duplicate for transporter" in those invoices covering the remaining amount is concerned, he submits that he is not in a position to factually verify the invoices; because he has not been furnished with the copies of relevant invoices. he, however, submits that what has been done by the applicants is not in consonance with the requirement of rule 52a.3. on a careful consideration of the submissions of both sides, i find prima facie force in the contention of the learned counsel that the use of the expression "carrier copy" is sufficient to indicate prima facie that these two invoices were duplicate for transporters and also that the invoices where duplicate for transporter has been marked are also valid for the purpose of taking credit. since the applicants have made out a prima facie case for waiver, the requirement of pre-deposit of the duty amount is waived and recovery stayed during the pendency of the appeal.

Judgment:
1. Arguing on the application for waiver of pre-deposit of Rs. 95,653.50, learned Counsel, Shri Gopal Prasad submits that credit of this amount has been denied on two counts, (i) a sum of Rs. 74,623.50 has been denied on 4 invoices for the reason that they were not marked as "duplicate for transporter" but were only marked as "carrier copy" and (ii) credit of Rs. 21,030/- has been denied on the ground that the 5 invoices on the strength of which this credit has been taken were not clearly marked as duplicate copy for transporter as they were simply marked by pen. It is not the proper way of marking as per Rule 52A of the Central Excise Rules. Learned Counsel submits that the carrier copy means nothing other than duplicate for transporters because a carrier is transporter and, therefore, this amount of credit has been rightly availed. Regarding the amount covered at Sl. No. (ii) above, he submits that when the invoice contained the marking - "original for buyer", "duplicate for transporter", "triplicate for Excise Department" and "quadruplicate for office copy" and what has been admittedly marked is the phrase "duplicate for transporter", credit has been rightly availed by the applicants. He, therefore, prays for waiver of pre-deposit and stay of recovery of the amount in question.

2. Learned DR draws attention to the impugned order and submits that since the invoices were not marked as duplicate for transporter, credit of Rs. 74,623.50 has been wrongly availed. As far as ticking by pen the expression "duplicate for transporter" in those invoices covering the remaining amount is concerned, he submits that he is not in a position to factually verify the invoices; because he has not been furnished with the copies of relevant invoices. He, however, submits that what has been done by the applicants is not in consonance with the requirement of Rule 52A.3. On a careful consideration of the submissions of both sides, I find prima facie force in the contention of the learned Counsel that the use of the expression "carrier copy" is sufficient to indicate prima facie that these two invoices were duplicate for transporters and also that the invoices where duplicate for transporter has been marked are also valid for the purpose of taking credit. Since the applicants have made out a prima facie case for waiver, the requirement of pre-deposit of the duty amount is waived and recovery stayed during the pendency of the appeal.