K.K. Bhatia, Member (T)
1. The facts in this case are that M/s. Gujarat State Fertilizers Corporation, Baroda imported Melamine and endorsed the Bill of Entry to their Zonal Office at Bombay which issued the invoice under Rule 57GG. The invoice was issued to M/s. Gujarat State Fertilizers Corporation, Kirti Nagar, New Delhi. The Kirti Nagar, New Delhi office issued the invoice under Rule 57GG to the appellants on the strength of which they availed the Modvat credit. The Assistant Commissioner of Central Excise Division-IV, Noida vide her Order dated 28-10-1997 disallowed the Modvat credit amounting to Rs. 28,101.60 to the appellants on the ground that Bombay Zonal Office of the supplier – M/s. GSFC was not registered with the Central Excise department. She observed that under Notification No. 32/94-C.E. (N.T.) such persons as intend to issue modvatable invoices, were required to be registered. If they were not registered upto 31-12-1994, the invoices issued by them were not to be considered a valid document under Rule 57GG. She, therefore held that the invoice issued by the GSPC office at Bombay was not a proper document. Accordingly, credit availed by the assessee is not admissible to them. Oh appeal, the Commissioner (Appeals), Ghaziabad, confirmed the findings of the original authority and rejected the appeal of the party.
2. The present appeal is against the above order of Commissioner (Appeals). I have heard Sh. Bipin Garg, Advocate for the appellants and Sh. V.M. Udhoji, JDR for the respondents. The Ld. Advocate for the appellants submitted that the appellant in this case have availed modvat credit on the strength of the invoice issued by M/s. GSFC, Kirti Nagar, New Delhi who are duly registered as dealers under Rule 57GG. Therefore, there is no discrepancy in availing the modvat credit by the present appeals. He also relied on the following decisions in support of his case :-
(i) CCE, Jaipur v. Shree Ram Vinyl & Chemical India Ltd. – 1999 (105) E.L.T. 294 (T)
(ii) CCE, Jaipur v. Tiruhari (I) P. Ltd. – 1999 (33) RLT167 (CEGAT).
In the above decisions, it is held that credit taken on the basis of invoice issued by dealer, who had received from manufacturer on original copy of invoices cannot be denied since assessee had not himself contravened any provisions and he had no means to verify that dealer took credit on wrong copy of invoice.
3. I have carefully considered the submissions made before me. In this case appellants have availed the modvat credit on the strength of the invoices issued by a dealer registered under Rule 57GG. The case of the department is that the dealer who issued the modvatable invoice, had received the goods from another dealer who had not got himself registered with Central Excise authorities. I am of the view that so long as the present appellant availed the Modvat credit on the admissible document under the rules, he cannot be denied the benefit of the same on the grounds that the dealer who had issued the modvatable invoice had received the goods from another dealer who had not got himself registered. First of all the appellants had no means to verify that the dealer who had passed on the modvat credit to him had in turn received the goods from another dealer who was not authorised to issue the modvatable invoices. Secondly, if at all the modvat credit was sought to be denied, the concerned party who had passed on the modvat credit in an authorised manner should have been made a party to the proceedings so as to enable them to state their part of the case and thereafter the decision should have been taken. In the present case the assessee has received the goods under the cover of the proper copy of invoice. I therefore, find no ground to deny them the Modvat credit. Accordingly I set aside the order passed by the lower Appellate authority and allow the appeal.