ORDER
K.S. Venkataramani, Member (T)
1. The brief facts are that a depot of M/s. Shriram Refrigeration Industries at Silvassa, received, 280 Nos. of Compressors from their factory at Hyderabad under Invoice No. 91 dated 10-4-1996 issued under Rule 52A through Kerala Transport. However, the duplicate copy of the invoice was misplaced in transit by the truck driver. Therefore, the Manager of depot of M/s. Shriram Refrigeration Industries at Silvassa, by a letter dated 25-4-1996 requested the Assistant Commissioner to allow him to accept the consignment of Compressors in question and issue modvatable invoices to parties under Rule 57G of the Central Excise Rules, on the strength of original copy of the invoice No. 19 dated 10-4-1996. The Assistant Commissioner of Central Excise by his communication dated 22-5-1996 observed that as per the provisions of Rule 57G(2A) of the Central Excise Rules, credit can be allowed on original copy of invoice in respect of manufacturer only and there is no such provision in respect of depot. Therefore the Assistant Commissioner rejected the request for taking credit on original copy of invoice. The appeal against the Assistant Commissioner’s order as above, the Commissioner (Appeals) held that the facility to allow credit on the basis of original copy of the invoice when the duplicate is lost, should be extended to the appellants also subject to verification of the facts and satisfaction of the Assistant Commissioner in the light of a letter dated 18-7-1995 from the Central Board of Excise & Customs. He therefore, set aside the Assistant Commissioner’s order and directed the Assistant Commissioner to consider the appellants request. The present appeal has been filed by the Commissioner of Central Excise, Surat against the above order of the Commissioner (Appeals).
2. Shri K.L. Ramteke the ld. JDR contended that as per Rule 57G(2A), the facility to allow Modvat credit on the basis of original copy of invoice is available only to the manufacturer who receives the inputs from another manufacturer or dealer. The ld. JDR urged that this facility is not available to the depot who receives excisable goods from manufacturer under Rule 52A.
3. Shri Bhushan Rao, Advisor Central Excise & Customs of the Respondents contended that as per the Board’s Circular dated 18-7-1995 Modvat credit is to be allowed on the strength of original invoice where the duplicate is lost in transit. Therefore, Shri Bhushan Rao urged that the interpretetion of the Board’s Circular sought to be given by the Commissioner in this appeal is against the law relating Modvat credit. He relied upon Bombay High Court decision in the case if Bombay Goods Transport Association v. Union of India -1995 (77) E.L.T. (Bom). The Bombay High Court held that if genuine documents like invoices extract of RG-23A are produced before the Assistant Commissioner evidencing proof of payment of duty on the inputs, then the assessee will be entitled to Modvat credit.
4. We have carefully considered the submissions made. The Rule 57G(2A) is to the effect that a manufacturer can take credit on the invoice received in the factory on the basis of original invoice, if the duplicate copy of the invoice has been lost in transit, subject to the satisfaction of the Assistant Collector. In the Board Circular dated 18-7-1995, the Board has clarified that both under Rule 52A/57GG credit can be allowed on the strength of original invoice where the duplicate invoice is lost in transit. The Board has again reiterated the careful scrutiny of the facts in each case by the Assistant Commissioner where the facility gives a relaxation to invoices issued both under Rule 52A and Rule 57GG. In the present case the respondents are not manufacturers themselves; they have received the material under Rule 52A invoice from the manufacturer. The respondents are the manufacturers’ depot and they have received it from their factory of manufacture at Hyderabad. The fact of the loss of the duplicate invoice in transit has been supported by the declaration by the driver of the truck given before the Magistrate at Silvassa who has filed an Affidavit to that effect. The Respondents are registered dealer and also a sales depot for their own manufactures by the factory at Hyderabad. They are maintaining the prescribed modvat register in form RG-23D. The invoice issued by respondents are modvatable invoices and valid duty paying document. In such a situation, it will be a very reasonable interpretation, as has been given by the Commissioner (Appeals), to allow them the facility to take credit on the original invoice, after proper scrutiny by the Jurisdictional Assistant Commissioner of Central Excise. Such an interpretation is called for as the Modvat credit facility is a beneficial legislation and its object of input duty relief to the manufacturers should not be defeated by highly technical and extremely strict interpretation of the wording of the rules governing Modvat. In this view of the matter, we see no reason to interfere with the impugned order the appeal is rejected.