ORDER
J.H. Joglekar (T), Members
1. On hearing both sides on the stay application, it was found that the issue being short, the appeal itself could be taken up for disposal. Both sides agreeing, this was done after waiving the requirement of pre-deposit of duty of Rs. 91,589/-.
2. The appellant had received certain duty paid inputs on which they had taken Modvat credit. Subsequently, the supplier-manufacturer paid further differential duty and issued a certificate which was countersigned by the jurisdictional superintendent on 7-4-2000. The assessee took credit on the basis of the certificate. This credit was reversed by the Assistant Commissioner on the grounds that the certificate was not a valid document and that as per the amendment vide Notification No. 51/2000/C.E. (N.T.), dated 29-8-2000, the correct documents should have been a supplementary invoice issued by the supplier-manufacturer. The assessee cited clarification given by Board Circular No. B/4/7/2000/TRU, dated 3-4-2000 to the effect that the dispute should be resolved in the spirit of simplification.
3. The assessee made the same request of the Commissioner (Appeals). The case law was cited for him to the effect that where the duty paid character of inputs was not in dispute, mere failure to follow supplementary provisions should not debar the availment. He however, upheld the original order. Hence, the appeal.
4. The amendment whereby the certificate signed by the Superintendent was replaced by an additional invoice to be issued by the supplier-manufacturer was dated 1-4-2000. The certificate on the basis of which Modvat was taken is dated 7-4-2000. Ordinarily it takes time for the amendments to percolate to the industry and to the department. Therefore, any unintentional contravention in the interim period should not be viewed strictly. It is noted that not only the assessee was at fault, but that the Superintendent who countersigned the certificate must also have been unaware of the amendment in the rules.
5. It is correct that the assessee at a later date could also procure an appropriate invoice but such lack of action should not go to deprive them of the eligible benefits.
6. Since the circumstances were extraordinary, the benefit of the incremental Modvat is extended to the assessee.
7. The appeal is allowed with consequential benefit, if any.