ORDER
Shri Jeet Ram Kait
1. This is an appeal filed by the Revenue against the Order-in-Appeal No.185/96(M) dated 27.9.96 by which the Commissioner (Appeals) has set aside the order of the Assistant Commissioner (Order-in-Original No.52/95 dt. 10.7.95) and allowed the appeal on the ground that since M/s. Sphinex Chemicals Ltd. has been registered as a dealer with the Central Excise department before 31.12.1994, the Assistant Commissioner ought to have regularised the credit under Rule 57H in terms of Board’s instructions contained in Board’s Circular No.76/76/94 dated 6.11.94, reported in 1994 (74) ELT7-27. In the light of the above, the lower appellate authority held that the order of the Assistant Commissioner disallowing the credit cannot be sustained and directed the Assistant Commissioner to verify the documents presented by the appellants and then regularise the credit under Rule 57H. Aggrieved by this, the department has come in appeal on the ground that Modvat credit has been wrongly availed by using the endorsed invoice of the manufacturer.
2. Ld. D.R. has stated that the dealer was unregistered and therefore, the invoices issued by such unregistered dealer are not modvatable invoice in view of the law laid by Larger Bench judgment in the case of Balmer & Lawrie as reported in 2000 (116) ELT 364-(Trib.)
3. Ld. Counsel for the respondent states that the dealer got himself registered before 31.12.94 as per the Board Circular No.76/76/94 dated 6.11.94 which is reported in 1994 (74) ELT 327.
14. On a careful consideration, since the matter has already been remanded, we feel that the appeal of the Revenue should be allowed and this case should be remanded back to the lower adjudicating authority for de novo consideration. We also direct the lower authority to examine whether the invoices are endorsed invoices, and whether Modvat credit can be given on such endorsed invoices in the light of the law laid down by Larger Bench in the case of Balmer & Lawrie as reported supra. The lower adjudicating authority will give the assessee a reasonable opportunity of being heard before passing a speaking order after verification of the documents so produced by the respondent.
(Pronounced & dictated in open Court)