ORDER
Jeet Ram Kait, Member (T)
1. This is a Revenue appeal against the Order-in-Appeal No. 186/2001 (M-II) dated 1.10.2001 passed by the Commissioner of Central Excise (Appeals), Chennai, where in para 10 of his order, he has noted that the inputs mentioned in all the invoices were received and accounted for within 6 months from the date of invoice. He has also noted that because of handling of voluminous documents they could not take credit within 6 months in Part II Register. It was also noted that during the hearing, the advocate for the party produced the Part I register to prove that the inputs were taken within 6 months and on perusal of the same he was satisfied that the inputs were accounted for in the stock register within 6 months and there was no dispute about duty paid nature and utilization. He also noted that in similar case in respect of the same appellant company he had allowed Modvat Credit in Appeal No. 128/2001 (M-III) and relying on the same, he allowed Modvat Credit.
2. Appearing on behalf of the Revenue, Shri C. Mani, learned DR submitted that availing Modvat credit beyond 6 months cannot be allowed as same is time barred and there are a number of decisions on this issue by the Tribunal. He also relied on the decision rendered by this Tribunal in the case of Madura Coats v. CCE, Trichy in which it has been held that credit taken after six months from the date of issue of duty paying documents, requirement of Rule 57-G(5) of Central Excise Rules, is not merely a procedural requirement and availment of credit is substantive provision and a time limit has been fixed for availing of the said benefit. In this decision, the Tribunal also referred to the judgment of the Tribunal in the matter of Kamakhya Steels Pvt. Ltd. v. Commissioner . He therefore, submitted that in view of the provision as contained in Rule 57-G(5), credit shall not be taken after six months of the date of issue of any documents specified under Sub-rule (3) and Rule 57-G(5). Since credit was availed by them after six months from the date of issue of duty paying documents, and since the requirement under Rule 57-G(5) is not procedural, but substantive, credit taken after six months cannot be allowed.
3. Shri M. Venkataraman, learned Counsel appearing for the respondents submitted that the above judgments will be applicable where the credit has been taken after a period of six months, whereas in their case, they have been denied credit on invoices which were issued within a period of six months. He also submitted that they have been denied Modvat Credit on Bill of Entry on which Modvat Credit was taken beyond six months. In this connection he submitted that period of six months is not applicable in case of Bill of Entry and in support of his plea he relied upon the judgment of the West Regional Bench of the Tribunal in the case of Hamco Mining & Smelting Co., Ltd. v. CCE, Surat 2001 (135) ELT 811 in which it has been held that date of issue of the bill of entry is to be notionally reckoned and credit taken after six months cannot be disallowed, as held in para 9 of the judgment. He therefore, submits that the matter may be remanded for re-verification of the invoice and if the same are within six months, credit may be allowed since in some of the invoices, credit has been taken within a period of six months and the department has wrongly disallowed the same.
4. Countering the arguments of the learned Counsel, Shri C. Mani, learned DR submitted that in the case of Hamco Mining & Smelting Co. (surpa), in para 9 it was held that… the goods would be available to the importer after the proper officer of Customs makes order for their clearance. He has also to physically deal with them only after this date. He has no control whatever over the process in the customs house relating to assessment of the goods. There is also no date of issue for a bill of entry, unlike an invoice issued under the Central Excise Rules. The date of issue of bill of entry therefore, is to be notionally reckoned”. The Tribunal in para 10 of the said judgment held that “it would be reasonable to say that the ‘date of issue’ in the case of goods imported and cleared, thereafter, for home consumption cannot be earlier than the date on which the importer can reasonably expect that the imported goods come into his hands and that would be the date on which the goods are passed out of customs charge”. In other words the Tribunal held that date has to be reckoned from the date of passing out of the customs charge and this is not a blanket provision in which Modvat Credit has been taken on Bill of Entry within six months period. He, therefore, submits that if the period is to be reckoned from the date of passing out of Customs charge, that would be available in the BE. Therefore, he submits that the observation as contained in paras 9 & 10 is to be taken into consideration at the time of de novo consideration.
5. I have considered the submissions made by both the sides in the matter. I find that the issue of taking Modvat credit within a period of six months from the date of invoice stands settled in the case of Madura Coats Ltd. (supra) in which it has been held that in regard to availment of Modvat Credit, the requirement under Rule 57-G(5) is not a procedural requirement but a substantive one and time limit has been fixed for availing of the said benefit and that it does not come in the category of not mentioning any details such as vehicle number under which the goods were transported or PLA entry number etc. It is a legal requirement specifying the time limit within which the credit an be availed of. Now it is settled proposition of law that where credit has been taken after six months, it cannot be allowed. But since the learned Counsel for the respondents has submitted that in certain cases where the credit has been taken within six months, the same has been disallowed which is against the law. On a query from the Bench as to which are those invoices, he said those invoices are not readily available with him. I accept his prayer for remand of the matter in regard to those invoices where credit has been denied even where credit has been taken within six months. I am also inclined to accept the submission of the learned DR about his submission on Bill of entry as noted above, as held in paras 9 & 10 of the judgment of the Tribunal in the case of Hamco Mining & Smelting Co. (supra). In view of the plea made by the learned Counsel that credit has been denied even where credit has been taken within six months, I am inclined to remand the matter for de novo consideration on this limited issue where modvat credit has been taken within six months and I order accordingly.