ORDER
Archana Wadhwa, Member (J)
1. The appellants have been denied the Modvat credit of Rs. 5,88,812.00 on the ground that they have not been able to produce the duty paying documents for the month of December 1994 which was required to be produced by them before their jurisdictional Superintendent of Central Excise, in terms of the provisions of Rule 57G (4), for the purposes of defacement of the same.
2. For the above purposes, the appellants were issued a show-cause notice proposing denial of the credit. During the course of adjudication, the appellants took a stand that the documents in question were filed in the office of the Superintendent and it seems that the same have been lost by his office. However, in support of the above contention, the appellant was not able to place any evidence to show the receipt of the documents by the Office of the Superintendent. The Deputy Commissioner, while adjudicating the case, also observed that if the duplicate copies of the invoice were lost, the appellant was at liberty to approach the Assistant Commissioner for allowing them to avail credit on the basis of original copy of the invoices which the appellant never did. As such by observing so that the appellants could not place on record any evidences, on the basis of which they have taken the credit, he disallowed the modvat credit and also imposed personal penalty of Rs. 25,000.
3. The above order was challenged by the appellants before the Commissioner (Appeals), who rejected the appeal by dismissing the appellants’ contention that the duplicate copies were filed in the office of the Superintendent on the ground that they have not been able to prove the submissions of such documents. He also observed that the appellants were legally bound to keep records of five years at least. Hence, he upheld the order of the Assistant Commissioner by observing that the modvat credit so denied cannot be allowed to them for want of documents showing payment of Excise duty on the inputs received.
4. Shri B.J. Mookherjee, Ld. Advocate appears for the appellants and again reiterates the same submissions. He also draws my attention to the RG 23A Part I & II register, in support of their submissions that the goods were duly entered in Part I and the credit was availed in Part II. As regards the original duty paying documents, he fairly agrees that the appellants could not produce the same either before the original adjudicating authority or before the first appellate authority and are also not in a position to trace the original duty paying documents.
5. Shri J.R. Madhiam, Ld. JDR appears for the Revenue and submits that as per the provisions of Rule 57G (2), no modvat credit is permissible if the inputs are not received in the factory under the cover of proper invoice. In term’s of Rule 57G (4), such invoices are required to be produced before the Superintendent for the purposes of defacement. If the assessee failed to produce such invoice, modvat credit cannot be allowed to them. The appellants’ stand in the instant case that such invoices were filed in the Office of the Superintendent and have been lost therefrom, cannot be accepted inasmuch as there is no evidence to show that such invoices were actually filed by the appellants. In the circumstances, he prays for rejecting the appeal.
6. I have considered the submissions made from both the sides. As per the provisions of Modvat Rules, credit is admissible only on production of invoice. Such invoices were required to be produced before the Superintendent in terms of Rule ,57G (4). The dispute in the present appeal is that the appellants have not been able to product such invoice for the purposes of defacement. Though the appellants’ stand is that they have filed such invoice in the Office of Superintendent, they are unable to substantiate the same by production of any documentary evidence to the contrary. Their bald statements that such documents were filed without any covering letter inasmuch as there was no such system of filing the documents under the covering letter, do not stand to benefit them in the absence of any evidence to show that such system was prevalent in that particular Range Office. As a reasonable prudent assessee, it is expected that any documents filed in the Government Office are filed under the cover of a letter. I also note that the appellants have also not been able to produce any other set of original invoice, which they must have kept in their factory itself. The appellants’ stand that entries were duly made in RG 23A Part I & II, do not benefit them inasmuch as such entries are required to be made by the appellants themselves in their factory without the intervention of any Central Excise Officers. In fact, the entire dispute is that the entries have been made in these two registers without production of documents on the basis of which the same have been made.
7. In view of the foregoing, I find that the authorities were justified in rejecting the modvat credit to the appellants. As regards the personal penalty of Rs. 25,000 it is seen that there has definitely been a lapse on the part of the appellants, inasmuch as they have not been able to produce either duplicate copy of the invoice or the original copy of the invoice and have taken the modvat credit in the absence of such documentary evidence. Accordingly, I uphold the personal penalty upon them.
8. In a nutshell, the appeal filed by the appellants is rejected.