JUDGMENT
Jyoti Balasundaram, Member (J)
1. The appeals by the Revenue arise of a common order of the Commissioner(Appeals) who has set aside the confirmation of the duty demands as a result of disallowing of modvat credit by the adjudicating authority who did so for the reason that the duty paying documents were defective. Some of the defects were:
(a) Invoices issued by M/s. Flexible Packaging Company, Mumbai showed the respondents’ address as Jalgaon which is away from the place of assessee i.e. Andheri East.
(b) certain Sr. numbers were not printed,
(c) that there were no details of original manufacturer mentioned in the invoice issued by M/s. Glamour Packaging Industries, and
(d) in some of the invoices (in Appeal No. 855/97) there is no printed number and the mode of transport is not shown.
2. The Commissioner (Appeals) has considered the explanation offered by the assessees/respondents and then held as under:
“The learned Advocate contended that the omission on the part of the supplier/dealer is of a procedural nature. The goods have in fact been received and the required modvat procedures have been complied with. The order in originals are not only silent on this issue but did not also dispute the duty paying character and receipt and utilisation in the final product. The substantial compliance of modvat procedure have been complied with. The format attached is as per the instruction of the department, the invoices contain the particulars of the dealers from whom the goods were received or the original manufacturer from whom the goods were received by the dealers. The deficiency pointed out are such which should not have normally any impact on the duty paying character of the goods. The omissions pointed out are on the part of the dealer who is also required to comply with the procedural requirement in terms of Rule 57GG like maintenance of records under R.G.23D of receipt of goods, and issue of modvatable invoices, intimation about printed ‘ serial number to the jurisdictional officer, filing of returns with extracts of the registers maintained, etc. The instruction issued by way of Trade Notice and the procedure laid down in Rule 57GG all prescribes various accounting procedures and requirements on the part of the dealer only, without mentioning that any lapse would result in denial of the credit to the manufacturer. Moreover, the show cause notices have been issued for recovery under Rule 57-I which provides for disallowing the credit or for reversal/recovery of credit already availed when the wrong availment was due to error, omission or misconstruction on the part of an officer, manufacturer or assessee. The dealer’s omission has not been specifically covered in the said provision. When it has not been established that the lapses of the nature mentioned in the show cause notice are due to an error or omission etc. by manufacturer or officer, when the duty paying character is not disputed, including its receipt and utilisation in the final product, the denial of the credit under Rule 57-I was not in order. In the circumstances I hold that modvat credit is not deniable and the orders denying the credit merits setting aside. Accordingly, setting aside the impugned orders, I allow the appeals.”
3. On hearing Shri Shukla, SDR and Shri R.J.Parakh, advocate, I find that no satisfactory arguments have been adduced before me except to state that the lapses are not procedural in nature and therefore, credit is not to be extended to the respondents. In respect of invoices issued by M/s. Flexible Packaging Company, the objection of the Revenue as represented by SDR is that these have been issued in the name of M/s. Starcare Pharmaceuticals,
Jalgaon and the name of the respondents has been inserted, and this establishes that these invoices have been tampered with. However, I see no substance in this objection in view of the fact that, there is no allegation in the show cause notices to this effect and the only allegation in respect of these invoices is that the address has been shown as Jalgaon which is away from the place of assessee i.e. Andheri East. It is also noted that in the case of such defects, the Tribunal has consistently held that these are rectifiable procedural defects which cannot lead to denial of substantive facility of modvat credit. Therefore, I see no reason to interfere with the impugned order and accordingly uphold the same and reject these appeals.