ORDER
V.P. Gulati, Vice President
1. The issue in the appeal relates to the benefit of Modvat credit in respect of goods which were received under the cover of invoices which have been held to be not proper for Modvat purposes.
2. The learned Advocate for the appellants has pleaded so far as one of the two invoices i.e. Invoice No. 42 issued by one Phoolchand is concerned, he is not pressing his claim on Modvat credit of Rs. 1,644.17 attributable to the goods covered by this invoice. In regard to the other invoice, he has pleaded the same was issued by a dealer who was subsequently registered in terms of the instructions issued later and the only defect found in respect of this invoice is the same was not pre-authenticated. He has pleaded that the preauthentication procedure was introduced by the Notification No. 33/94 which inserted Rule 57GG. He has pleaded, however taking note of the difficulties of the assessees and the trade, the Government of India issued instructions vide their Circular No. 76/76/94-CX, dated 6-11-1994 which is reproduced below for convenience of reference:
1. I am directed to forward herewith a copy of Notification No. 64/94-C.E. (NT), dated 7th November, 1994, amending Rule 57H.
2. Rule 57H of the Central Excise Rules, 1944 deals with transitional provisions. The present amendment to the said Rule, inter alia, permits acceptance of “any invoice” or “any document” as may be prescribed by the Central Board of Excise & Customs as valid document under Rule 57G.
3. The present amendment of Rule 57H has been made to remove the difficulties arising out of the budgetary changes in 1994-95 relating to acceptance of “invoice” as proper document for the purpose of Modvat Credit and issue of Notifications such as Notification No. 21/94-CE (NT), dated 12-5-1994 and Notification No. 32/94-C.E. (NT), dated 4-7-1994. The Assistant Collector, at his discretion, could accept the invoice issued by the person referred to in Rule 52A Notification No. 15/94-C.E. (NT) and Notification No. 21/94-CE. (NT).
4. Now therefore, by virtue of powers conferred by Rule 57H of the Central Excise Rules, 1944 the Central Board of Excise & Customs hereby prescribes the invoice/document issued by –
(i) a manufacturer from his factory;
(ii) a manufacturer from his depot;
(iii) a wholesale distributor/dealer of the manufacturer, or
(iv) an importer from his godown,
as valid document for the purpose of allowing Modvat credit.
5. It is clarified that such invoice should contain the details as referred to in Notification No. 15/94-C.E. (NT) and Notification No. 21/94-CE. (NT). The Asst. Collector shall recognise such document if issued by the categories of persons mentioned in the said Notifications who have got themselves registered under Rule 57GG of the Central Excise Rules, consequent to issued Notification No. 32/94-C.E. (NT), dated 4-7-1994.
6. It is further clarified that the document prescribed above by the Central Board of Excise and Customs could be accepted by the Asst. Collector only upto 31st December, 1994. In other words, any document issued by registered person prior to such registration would be acceptable if he is eligible to issue invoice/document under Notification No. 15/94-C.E. (NT) and Notification No. 121/94-C.E. (NT).
7. In view of the above the Board desires that an immediate exercise should be taken as per provision of law so that the credit intended to be allowed, as above, is not denied.
3. The learned Advocate has pleaded that in terms of this circular, so long as the invoices carried the particulars as were required to be set out in terms of Notification 15/94 and Notification 21/94, the benefit of the Modvat credit could be allowed. He has pleaded that the learned lower authority has not adverted to this circular while deciding the issue.
4. The learned JDR for the department has pleaded that this aspect can be looked into.
5. In view of what has been pleaded, I take up the appeal itself by dispensing with the pre-deposit, with the consent of both the sides.
6. I observe that at the time when the switch-over of the documents took place by amendment of Rule 52A and the benefit of the Modvat credit was allowed under the invoice issued by the dealers, a number of difficulties were experienced by the trade and a number of clarifications were issued from time to time. The Circular No. 76/76/94-CX, dated 6-11-1994 was issued to take care of the difficulties of the trade. The learned lower authority has not looked into the matter with reference to this circular of the Board which has provided for some relaxations which are relevant to the issue. The matter, in my view has to be examined afresh, taking into consideration the instructions as contained in the said circular.
7. I, therefore, set aside the order of the lower authority and remand the matter for de novo consideration and decision in the light of the above. I observe that so far as the claim which relates to the Invoice No. 42 is concerned, since the same is not pressed, the learned lower authority’s order in regard to the same is upheld.
