ORDER
V.K. Agrawal, Member (T)
1. This appeal has been filed by the Revenue against the Order-in-Appeal No. 120/03 dated 3.4.2003, by which the Commissioner (Appeals), has allowed the Modvat Credit to M/s. Pasupati Haryana Woollens Ltd.
2. Shri O.P. Arora, learned SDR, submitted that the respondents manufacture yarn and avail Modvat Credit under Rule 57A of the Central Excise Rules, 1944; that the respondents had taken Modvat Credit on the strength of 4 gate passes dated 29.7.93, 4.9.93, 14.9.93 and 13.12.93; that these gate passes were endorsed for Tops, though originally consigned for Tows; that, thus, a conversion from Tow to Tops has taken place; that the consigner was M/s. Indian Organic Chemical Ltd., Madras and the goods were received after conversion of Tows to Tops by M/s. Wellman Hindustan Ltd.; that Tows and Tops are different commodities and since the change had taken place after conversion of Tows to Tops, the endorsement on gate passes, issued in such a situation, cannot be treated as valid duty-paying document, He, further, submitted that the respondents had also taken Modvat Credit on the basis of two subsidiary gate passes for Tops issued by the Supdt. of Central Excise, Range-I; that scrutiny of these two subsidiary gate passes reveals that the goods were manufactured by M/s. Indian Organic Chemical Ltd., Madras whereas in column No. 1, the name and address of the party, which paid duty on the goods and applied for issue of subsidiary gate passes, have been shown as M/s. Indian Organic Chemicals Ltd., Pondicherry; that subsidiary gate passes, issued in this matter, are not valid duty-paying documents for claiming the Modvat Credit.
3. On the other hand, Shri V.M. Verma, learned Advocate, submitted that the subsidiary gate passes had been issued by the Range Superintendent and it is not the case of the Department that these certificates are not genuine one; that in absence of such a plea, the Department cannot doubt the veracity of the subsidiary gate passes; that the gate passes have also been endorsed in favour of the respondents and as per the provisions of Notification No. 16/94-CE (NT) dated 30.3.94, these are valid duty-paying documents on the basis of which the Modvat Credit can be availed of.
4. We have considered the submissions of both the sides. We find considerable force in the submissions of the learned Advocate for the respondents that the Modvat Credit cannot be denied to them on the strength of subsidiary gate passes issued by the Range Superintendent. As emphasised by him, it is not the case of the Revenue that these subsidiary gate passes are forged one. If there is any doubt about the subsidiary gate passes, the right course for the Revenue was to check up the matter with the Superintendent who had issued the same. In view of this, we reject the appeal of the Revenue on this count. However, in respect of four gate passes, the Revenue’s stand is acceptable. No doubt, the endorsed gate passes were the valid duty-paying documents for the purpose of availing the Modvat Credit upto 30.6.94, but it is essential that the goods should be the same in respect of which the gate passes were initially issued. In the present matter, it is not controverted by the respondents that the gate passes were in respect of Tows whereas the goods received by the respondents were Tops. In view of this, these gate passes cannot be treated as valid duty-paying documents for the purpose of availing the Modvat Credit. To this extent, the Revenue’s appeal is allowed. However, no penalty is imposable on the respondents on this count.