ORDER
Mrs. Archana Wadhwa
1. After dispensing with the condition of predeposit of duty amount of Rs.14,236.00 and penalty of Rs.5,000.00, I take up the appeal itself with the consent of both sides.
2. I have heard Shri S.K.Roychowdhury, learned Advocate for the appellant firm and Shri V.K.Chaturvedi, learned S.D.R. for the Revenue.
3. The appellant firm is a second stage dealer registered with the Central Excise Authorities. They received the goods from the first stage dealer under the cover of an invoice and took MODVAT Credit. The said invoice was produced before the Officers. At the time of issuance of invoice as a second stage dealer, they got the said invoice pre-authenticated from the Central Excise Officers. On the basis of the said invoice, their customers took the MODVAT Credit. Subsequently, they were issued a show cause notice proposing to deny the MODVAT Credit to their customers on the alleged ground that the invoice issued by them was not a proper modvatable document. This allegation was made on the ground that the said invoice was not produced before the proper officer for counter-signature as per Calcutta Commissionerate Trade Notice dated 2.9.96. On the basis of the above allegation, the Assistant Commissioner passed the Order confirming demand of duty of Rs.14,236.00 against the appellant and imposing penalty upon them. The said Order was upheld by the Commissioner(Appeals). Hence the present appeal.
3. It is the contention of the appellant firm duly represented by their learned Counsel that there is no requirement under the provisions of Rule 57GG or Notification NO.23/95-CE(NT) dated 30.5.95 to produce the invoice before the Central Excise Officers for counter-signatures. Drawing my attention to a parallel Trade Notice issued by the Bombay Commissionerate, he submits that even the said Notice does not prescribe any condition of producing the invoice before the Central Excise Officers for counter-signatures. The only requirement is authentication of the invoice by the Central Excise Officers, which condition stands duly satisfied by them, as also admitted in the show cause notice. He also assails the impugned Order on the ground that whereas in the show cause notice the proposal was to deny the benefit of MODVAT Credit to their customers on the ground of irregular nature of the invoice in question, but in the impugned Order, the Assistant Commissioner has confirmed the demand of duty against the appellant firm.
4. After considering the submissions made from both sides, I find a lot of force in the appellants’ submissions. The impugned Orders have been passed by the authorities below in a slip-short manner and without considering the relevant procedural law on the issue. There is no dispute about the invoice having been got authenticated by the Central Excise Officers inasmuch as the same is admitted in the show cause notice. The production of the invoice before the Central Excise Officers for his counter-signature, even if prescribed in the trade notice, is nothing but a procedural contravention, for which the MODVAT Credit, otherwise available, cannot be denied to the assessee. It is also seen that the show cause notice proposes to deny the MODVAT Credit to the appellants’ customers and to recover the same from them under the provisions of Rule 57I, whereas the Order passed by the Assistant Commissioner relates to the recovery of the same from the appellants. As such, the Order of the Assistant Commissioner has travelled beyond the show cause notice.
5. In view of the foregoing discussions, I set aside the impugned Orders and allow the appeal with consequential reliefs to the appellants.
Dictated in the open court.