JUDGMENT
Archana Wadhwa
1. Shri S.N.S. Mohapatra, ld. adv. appearing for the appellant submits that after filing of the stay petition, the appellant was pressurised by the Revenue to deposit the duty in question. AS such it has been deposited by them on 16.8.2001. In view of what has been stated by the ld. adv. the stay petition becomes infructuous. Accordingly I take up the appeal itself.
2. It is seen that an amount of modvat credit of Rs.42,588/- (rupees forty two thousand five hundred eighty eight) availed by the appellant on the basis of the original invoices during the month of April 1994 was originally rejected by the Asst. Commissioner. On an appeal against the above other Commissioner (Appeals) remanded the matter for de novo decision. In de novo proceeding the Asstt. Commissioner made enquiries. as regards the duty paid character of the goods and about the appellants’ contention that the duplicate copies of the invoice were retained by the Border Check Post authorities and were not traceable. On being satisfied that the duplicate copies have been genuinely lost by the appellant, he dropped the proceedings against them. The Revenue filed an appeal against the above order of the Asst. Commissioner, which was reversed by the Commissioner (Appeals) on the ground that sub rule 2A of rule 57G allowing taking of credit on the basis of original copies where duplicate were lost, we introduced w.e.f. 20.5.94. Inasmuch as the appellants’ case belonged to the period prior to the said date, he held that provisions of rule 57G(2A) were not applicable and there was no provision during the relevant period to take the credit on the basis of the original copies where duplicate was lost. He accordingly reversed the order of the Asst. Commissioner.
3. Shri S.N.S. Mohapatra, ld.adv. draws my attention to the various decisions of the Tribunal, which are to the effect that the provisions of sub rule 2A are clarificatory only and thus have retrospective effect. He submits that when there is no dispute about the loss of the duplicate copy of the invoice and the duty paid character of the inputs received in the appellants’ unit, there was no justification for denial of credit.
4. Shri D.K. Bhowmil, ld. JDR appears for the Revenue and reiterates the reasoning of the Commissioner (Appeals).
5. I find that the Tribunal in the case of Bharat Ispat v. CCE-1996 (86) ELT 536 (New Delhi-CEGAT) has observed as under:-
“…..The main object and purpose was to ensure that MODVAT credit was taken only in respect of duty paid goods covered by the scheme and there was no misuse of the facility. That was why, apart from prescribing various documents with reference to which the benefit could be availed of, an additional condition by way of satisfaction of the Asst. Commissioner had been incorporated. Moreover, even before the insertion of the aforesaid sub-rule (2A). If the gate pass was lost in transit, it was open to the Asst. Commissioner to make enquiries and satisfy himself before allowing the credit. What was earlier implied had now been made explicit by introducing sub-rule (2A). In these circumstances, sub-rule (2A) could only be considered as clarificatory in nature providing for a procedure which could be deemed to have a retrospective effect…..”
To the same effect are the other decisions of the Tribunal. When admittedly the duplicate has been lost and there is no dispute about the duty paid character of the inputs, I fully agree with the submissions of the ld. adv. that there was no justification for denial of credit only on the technical ground that the same was taken on the basis of original copy of the invoice and there was no provision during the relevant period for taking the credit on the basis of the original copy of the invoice. As such I set aside the impugned order and allow the appeal with consequential relief to the appellant.
Dictated in the court.