ORDER
G.R. Sharma, Member (T)
1. These are two appeals. Since the issue for determination in these two appeals is same, therefore, they were heard together and are being disposed of by this common order.
2. The issue is whether Modvat credit can be taken on the strength of invoices/challans which do not bear the details of manufacturer with complete address, address of Central Excise Range Division and Collectorate, Invoice No., Date and time of issue, total quantity, value rate and amount of duty covered under such invoice. The Department alleged that since these particulars were not disclosed by the appellants, therefore, Modvat credit was wrongly taken on the strength of these incomplete invoices.
3. Shri R. Santhanam, Ld. Counsel appearing for the appellants submits that the appellants received inputs from M/s. Steel Authority of India Ltd. and their stock yards under their challan/invoice. He submits that most of the particulars required in terms of Notification No. 33/94-CE(NT) dated 4.7.94 were available in the invoices. He submitted that whatever particulars more were required by the Department, they were furnished later on. He submits that furnishing of full particulars is a curable defect which could be rectified later on. He submits that particulars were required to be furnished in the invoices/challans issued by Steel Authority of India Ltd. He submits that Steel Authority of India Ltd. is a Public-sector Undertaking and the Govt. had been issuing instructions that invoices issued by Public-sector Undertakings may be accepted for purpose of taking credit of duty paid on inputs under the Modvat scheme. He submits that the appellants were getting the invoice under Sub-rule 2(ii) of Rule 57H of the Central Excise Rules. It was a manufacturer’s invoice from his depot. He submits that in their case the manufacturer were the iron & steel plant of Govt. of India and the invoice was issued by their stock yard at Kanpur. He submits that under Rule 57H invoice issued by a manufacturer from his depot was the valid document for the purpose of taking Modvat credit. He refers to the circular of the Central Board of Excise & Customs issued from file F. No. 267/50/ 94-CX.8 and submits that in para 5 it was clarified that the invoice issued by a manufacturer from his depot is a duty paying document if it contains details as referred to in Notification No. 15/94-CE(NT) and Notification No. 21 /94-CE(NT). The Asstt. Commissioner shall recognise such document if issued by the categories of persons mentioned in the said notification who have got themselves registered under Rule 55GG of the Central Excise Rules consequent to issue of Notification No. 32/94-CE(NT) dated 2.7.94. The CBEC in para 6 of its above letter further clarified that the document prescribed above by the Central Board of Excise & Customs could be accepted by the Asstt. Commissioner only upto 31.12.94. In other words any document issued by the registered person prior to such registration would be acceptable if he is eligible to issue invoice/document under Notification No. 15/94-CE(NT) and Notification No. 21/94-CE(NT). He submitted that from the above clarification it was very clear that the appellants had correctly taken Modvat credit on the strength of challans-cum-invoices issued by the Steel Authority of India. Ld. Counsel pointed out that the Ld. Commissioner (Appeals) in the impugned order had held:
I have examined the case carefully. I find that the adjudicating authority has denied the credit on the ground that duplicate for transporter copy was not produced and the customer copy of the invoice is not admissible as Modvatable documents. I agree with the findings of the adjudicating authority that Modvat credit is admissible only on the duplicate copy of the invoice issued by the dealers. The appellants at this stage also failed to produce the duplicate for transporter copy for examination. Thus, they have not followed the procedures and provisions for availing the credit on the original copy of the invoices. I disagree with the contention of the appellants that the adjudicating authority has taken a different stand in the instant case. But on the contrary I find that the issue of customer copy of invoices was not at all raised in the adjudication order relied upon by the appellants. Thus Modvat credit taken on the customer copy invoice is not an admissible document for Modvat purposes and credit cannot be allowed.
Ld. Counsel submitted that this was not the issue in the SCN and that the Ld. Commissioner has travelled much beyond the SCN. In the SCN the only issue raised was that the invoices did not contain full particulars as required in terms of Notification No. 33/94 dated 4.7.94. Ld. Counsel, therefore, prayed that the appeals may be allowed.
4. Shri M.M. Dubey, Ld. DR submits that the appellants have claimed Modvat credit on the strength of invoices/challans which did not contain full particulars as contemplated under Notification No. 33/94. He submits that unless complete and full particulars are furnished, they do not become documents for purpose of availing Modvat credit. He submits that since the invoices/challans issued by the Steel Authority of India Ltd. were incomplete, therefore, the authorities below have rightly denied the benefit of Modvat credit on the strength of these invoices.
5. Ld. DR also referred to the question whether Modvat credit could be taken on the strength of customer copy. He submitted that this copy becomes important inasmuch as the entire trust is placed on the trade in terms of the self-removal procedure. He submits that no other copy of the invoice/challan was the valid document for purpose of taking Modvat credit. He submits that in this view of the matter the appeal has rightly been rejected by the lower appellate authority and prays that the impugned order may be upheld and the appeal may be rejected.
6. We have heard the rival submissions. We find that the adjudicating authority in the order had formulated that two issues arose in the case for decision the first issue was whether Modvat credit could be taken on the strength of invoices which do not contain full particulars as envisaged under Notification No. 33/94. The second issue formulated was whether Modvat credit could be taken on the customer’s copy. We have perused the SCN. We note that in the SCN the only allegation was that Modvat credit has been taken on the strength of gate passes/invoices which did not contain all the particulars required in terms of Notification No. 33/94. We note that the second issue as formulated by the adjudicating authority does not arise out of the SCN. In the SCN there is no allegation that Modvat credit has irregularly been taken on the strength of customer’s copy and thus we note that the Ld. Commissioner (Appeals) has travelled much beyond the SCN.
7. Insofar as taking of credit on the strength of invoice containing incomplete particulars is concerned, we find that the position has not been correctly examined by the Ld. Commissioner (Appeals). He should have examined the particulars in the invoice/challans of the Steel Authority of India in the light of various instructions issued by the Govt. from time to time as to acceptance of the invoices/challans of Public-sector Undertaking as a duty paying document for purpose of taking Modvat credit etc. There is no mention anywhere in the order of the Commissioner (Appeals) on this issue. We have come across a number of decisions of this Tribunal where a mention of such instructions is made. Since the Ld. Commissioner insofar as customers copy of gate passes and taking credit thereon is concerned has travelled beyond the SCN and since the examination of the invoices/gate passes has not been done in the light of various instructions on the subject in respect of invoices/challans issued by Public Sector Undertakings, we deem it a fit case for remand. In the circumstances, we remand the matter to the Ld. Commissioner (Appeals) directing him to examine the papers again especially the invoices and their acceptability as duty paying document for the purpose of Modvat credit. Ld. Commissioner (Appeals) shall examine the case papers (appeals) and pass an appropriate order in accordance with law after giving the appellants an opportunity of being heard in person. The appeals are, therefore, allowed by way of remand.