C.C.E. Coimbatore Vs. M/S. Sree Bharani Spinners (i) - Court Judgment

Excerpt:
1. the revenue has challenged the correctness of the order in appeal no.225/98- (cbe) dated 31.12.1998 passed by the commissioner (appeal) wherein in para 3 of his order, he has held as under: "i have gone through carefully the facts of the case and the submissions made by the appellant. there is no denying the fact that the viscose staple fibre on which the credit of duty was taken was duty paid and that the appellant had taken the credit of duty on 3.1.96 based on proforma invoice which though not admissible yet the appellants had already received the regular invoice under rule 52a on 6.1.96 i. e. after 3 days. thus they are entitled to credit of duty on the basis of the regular invoice no. 4 dated 6.1.96 and rule 57g(2) also provides for taking of the credit of duty within six months from the date of duty paying documents. thus there is no irregularity in claiming the credit and the lower authority has wrongly disallowed the same" 2. in the grounds of appeal filed by the revenue,it is stated that rule 57g provides for availing of credit of duty paid on inputs within six months from the date of issue of duty paying documents. this rule does not have any relevance to the issue involved in the present case, that is availment of credit of duty paid on the inputs on the basis of documents not specified under rule 57g.3. shri s.arumugam, learned dr presses for allowing the order in original by setting aside the order in appeal. it is his contention that although the goods have been received under proforma invoice, there is no duty paying nature of the inputs and also there is discrepancy. the admitted fact is that regular invoice was received between three days, yet the finding arrived at by the order in original was that the goods should have been accompanied by the regular invoice which is a specified document under the rules.4. the learned consultant on the other hand submitted that there is no irregularity in taking the credit. the inputs had suffered duty and had carried the proforma invoice showing the duty paying nature of the inputs. regular invoice was also available within three days. the commissioner (appeals) has given a finding that the rules provide for taking of credit within six months from the date of duty paying documents. the finding arrived at by the commissioner (appeals) is legally correct. he also relied upon the judgement of the tribunal in the case of cce vs. cheviot co. ltd reported in 1999 (112) elt 58 and also in the case of thirupathi foam pvt ltd. vs. cce reported in 1994 (72) elt 770 wherein it is held that when there is apparent conflict between the two provisions of law, it is for the court to draw a harmonious interpretation which avoids one of them being rendered redundant.5. on consideration of the submissions made and on perusal of the order of the commissioner (appeals), i find that the commissioner (appeals) has noted that the inputs had been received on paying duty although on proforma invoice. proforma invoice is also invoice and the invoice is a specified document for taking credit under the rules. be that as it may, the regular invoice has been received within three days. there is no discrepancy found. therefore the finding arrived at by the commissioner (appeals) that the inputs were covered by the proforma invoice which is also an invoice is correct. there is no infirmity in the order of the commissioner (appeals). in this view of the matter, there is no merit in the appeal and the same is rejected.

Judgment:
1. The Revenue has challenged the correctness of the Order in Appeal No.225/98- (CBE) dated 31.12.1998 passed by the Commissioner (Appeal) wherein in para 3 of his order, he has held as under: "I have gone through carefully the facts of the case and the submissions made by the appellant. There is no denying the fact that the viscose staple fibre on which the credit of duty was taken was duty paid and that the appellant had taken the credit of duty on 3.1.96 based on proforma invoice which though not admissible yet the appellants had already received the regular invoice under Rule 52A on 6.1.96 i. e. after 3 days. Thus they are entitled to credit of duty on the basis of the regular invoice No. 4 dated 6.1.96 and Rule 57G(2) also provides for taking of the credit of duty within six months from the date of duty paying documents. Thus there is no irregularity in claiming the credit and the lower authority has wrongly disallowed the same" 2. In the grounds of appeal filed by the Revenue,it is stated that Rule 57G provides for availing of credit of duty paid on inputs within six months from the date of issue of duty paying documents. This rule does not have any relevance to the issue involved in the present case, that is availment of credit of duty paid on the inputs on the basis of documents not specified under Rule 57G.3. Shri S.Arumugam, learned DR presses for allowing the order in original by setting aside the order in appeal. It is his contention that although the goods have been received under proforma invoice, there is no duty paying nature of the inputs and also there is discrepancy. The admitted fact is that regular invoice was received between three days, yet the finding arrived at by the order in original was that the goods should have been accompanied by the regular invoice which is a specified document under the rules.

4. The learned Consultant on the other hand submitted that there is no irregularity in taking the credit. The inputs had suffered duty and had carried the proforma invoice showing the duty paying nature of the inputs. Regular invoice was also available within three days. The Commissioner (Appeals) has given a finding that the rules provide for taking of credit within six months from the date of duty paying documents. The finding arrived at by the Commissioner (Appeals) is legally correct. He also relied upon the judgement of the Tribunal in the case of CCE vs. Cheviot Co. Ltd reported in 1999 (112) ELT 58 and also in the case of Thirupathi Foam Pvt Ltd. vs. CCE reported in 1994 (72) ELT 770 wherein it is held that when there is apparent conflict between the two provisions of law, it is for the Court to draw a harmonious interpretation which avoids one of them being rendered redundant.

5. On consideration of the submissions made and on perusal of the order of the Commissioner (Appeals), I find that the Commissioner (Appeals) has noted that the inputs had been received on paying duty although on proforma invoice. Proforma invoice is also invoice and the invoice is a specified document for taking credit under the rules. Be that as it may, the regular invoice has been received within three days. There is no discrepancy found. Therefore the finding arrived at by the commissioner (Appeals) that the inputs were covered by the proforma invoice which is also an invoice is correct. There is no infirmity in the order of the Commissioner (Appeals). In this view of the matter, there is no merit in the appeal and the same is rejected.