ORDER
Gowri Shankar
1. In the order impugned in this appeal, the Commissioner (Appeals) has confirmed the denial by the Asst. Commissioner of the credit of the appellant on 20.7.94 of the duty shown to have been paid on the original copy of the invoice issued on 18.5.94.
2. The order of the Commissioner (Appeals) makes sorry reading. It says that since credit can be taken on the original copy of the invoice only when the duplicate is lost subject to an application made to the Asst. Commissioner and since the Asst. Commissioner has turned down the assessee’s application it follows that he was not satisfied with the assessee’s claim. Therefore he does not find “reasonable ground” to interfere. It was expected of the Commissioner (Appeals) that he apply his mind on the submissions made before him and pass a reasoned order. In fact, the Asst. Collector in his order has denied the credit not because he was not satisfied that the duplicate has been lost but because the amendment to Rule 57G by insertion of Rule 2A which was introduced in the Rule 57G which permitted credit to be taken on the original when the duplicate were lost it came on the statute book on 20.5.94, after the invoice was issued.
3. The credit was taken by the appellant on 20.7.94 after Rule 2A came into effect. That rule governed taking of credit and not issued on invoices. The appellant was therefore entitled to claim the benefit of this rule. In its letter of 20.7.94, the appellant had informed the Asst. Collector of the loss of the duplicate and requested permission to take credit on the original. In its decision in CCE v. Avis Electronics Pvt. Ltd. 2000 (69) ECC 272 (LB) : 2000 (117) ELT 571, the Tribunal has held the word “transit” referred in Sub-rule 2A included a movement of a invoice of the person who sold the input to the office of the concerned excise officer. The duplicate has thus been lost in transit. The representative of the applicant agrees that formalities such as filing of applications as prescribed in the trade notice has not been followed but says that the appellant is prepared to furnish an undertaking to the Asst. Commissioner that in the event it is found that credit has been taken on the duplicate copy of the invoice it shall be revealed to the department of such amount of in question. On furnishing such an Undertaking, the spirit of instructions contained in the trade notice is in my view satisfied.
4. The appeal is accordingly allowed and the impugned order set aside. On receipt of the undertaking within two months from the receipt of the order the Asst. Commissioner shall permit taking of credit Part II of the RG 23A account and its utilization in accordance with law.