ORDER
C. Satapathy, Member (T)
1. Heard both sides. Shri R.J. Parakh, learned Advocate for the appellants shows the original copies of the impugned invoices and states that the credit was taken on the duplicate copies of the invoices which were lost after taking the credit and hence could not be submitted to the Departmental authorities along with the monthly return. He relies on the decision of the Tribunal in the following cases :-
(1) Trishul Alloys Pvt. Ltd. v. Commissioner of Central Excise, Calcutta-I - 1997 (92) E.L.T. 249 (Tri.) (2) Bharat Roll Industry (P) Ltd. v. Commissioner of Central Excise, Calcutta-II - 1999 (114) E.L.T. 51 (Tri.) (3) Swastik Castings P. Ltd. v. Commissioner of Central Excise, Jaipur -1998 (101) E.L.T. 382 (Tri.) He draws attention to the following observation of the Commissioner (Appeals) in the impugned order :-
“As regards cases cited by the appellants, it is to say that the Tribunal being creature of the Central Excise Act, 1944, is bound by the law mentioned therein and cannot laid down there own law. The legal requirement is that only duplicate copy of the invoice is admissible for Modvat and no other copy. Law also prescribes that Modvat can be availed on original copy of the invoice in case duplicate copy is lost. But there has to be evidence for the loss of the duplicate copy.”
The learned Advocate states that the Commissioner (Appeals) is bound by the decisions of the Tribunal even if they are not correct and that he should have allowed the appeal following these decisions.
2. Shri S.S. Bhagat, learned S.D.R. appearing for Revenue fairly states that the Commissioner (Appeals) should have avoided the remark he has made regarding the Tribunal. However, he states that the Sub-rule (2A) of Rule 57G seeks to address a different situation where credit can be taken on the basis of the original invoice if the duplicate copy of the invoice is lost in transit but there is no provision in the rules regarding cases where the duplicate copy of the invoice is claimed to be lost in the factory. He also states that the appellants have not produced any proof of loss of the duplicate copy or that they had indeed taken credit on the copy of the duplicate invoice. He also points out that it is only the zerox copy of the original on which endorsement regarding taking credit has been made where as no such endorsement is made on the original copy which is produced before the Tribunal at the time of hearing today. He states that the Tribunal’s decisions cited by the appellants go beyond the Sub-rule (2A) of Rule 57G which is applicable only to cases where duplicate copy of the invoice is lost in transit and the same should not be applied to other cases.
3. Learned Advocate for the appellants also…. points out that in the case of Bharat Roll (P) Industries Ltd., the Tribunal has allowed credit of duty in a case where the invoices were lost in the claimant’s factory in view of the fact that there was no doubt regarding such loss, there was no dispute about receipt of inputs, or regarding the duty paid character and utilisation of the inputs. He requests that the case may be remanded to the original authority for making suitable verification and considering the appellant’s claim for credit.
4. After hearing rival submissions and perusal of case records and the cited laws, I am of the view that the Commissioner (Appeals) should not have made the aforesaid remark regarding the Tribunal which is a higher appellate body. However, it cannot be said that there is no substance in the contention of Revenue that the Tribunal being a body created under the relevant statutes can only interpret the existing rules but not write new provisions into the rules which do not exist while giving a decision on an appeal. It is a fact that Sub-rule (2A) of Rule 57G deals with cases where duplicate copies of invoices are lost in transit, but some of the decisions cited go beyond the specific provisions of the said Sub-rule (2A) and allow credit where duplicate copies of invoices are claimed to be lost after receipt of the inputs.
5. In view of the fact that only zerox copies of original invoices were produced before the lower authorities earlier and original copies have been shown only during hearing at the Tribunal and the same are seen to cover delivery of the inputs to the premises of the appellants, I remand the case to the original authorities for examining the original copies of the invoice and conduct other necessary inquiry as deemed fit and decide the case afresh in accordance with law after affording due opportunity to the appellants to present their case before him. The appeal is allowed by way of remand.