JUDGMENT
Archana Wadhwa
1. Modvat credit has been denied to the appellants on the ground that the same has been availed by them on the basis of the invoice issued by non-registered dealer and on the basis of original copy of the invoice as also against photo copy of the duplicate copy of the invoice.
2. After hearing Shri K.K. Banerjee, ld. Advocate for the appellants and Shri A.K. Mondal, ld. JDR for the Revenue, I find that the issue as regards availment of credit on the basis of original copy of the invoice stands decided against the appellants by the Larger Bench decision of the Tribunal in the case of Commr. of Central Excise, New Delhi v. Avis Electronics and Ors. reported in 2000 (37) RLT 501 (CEGAT-LB). The appellants have not satisfied the Assistant Commissioner about the loss of duplicate copy of the invoice and have not followed the requisite procedure. As such that the benefit of the credit has been rightly denied to the appellants. I also find that the denial of credit on the basis of photo copy of the duplicate copy is also justified inasmuch as there is no provisions for taking credit of such photo copy.
3. An amount of Rs. 8,388.86 has been denied on the ground that the invoice has been issued by non-registered dealer. The appellants’ contention is that the said invoice is issued by M/s IOC Ltd. under Rule 52A and not under Rule 57GG. It is only that the goods have been supplied from the Depot of M/s Indian Oil Corporation. As such, the denial of credit is not justified. The said factum of invoice having been issued under Rule 52A by M/s. IOC Ltd. has not been looked into by the authorities below. Accordingly, I set aside the said portion of the impugned order and remand the matter to the original adjudicating authority for deciding the same afresh after verification of the invoice.
4. As regards the penalty, I find that the law was not clear at the relevant time and was only settled by the Larger Bench decision of the Tribunal. The appellants though took credit but never utilised the same. As such, I do not find any justification for imposition of personal penalty upon the appellants. As such, penalty of Rs. 25,000/- is set aside. Appeal is disposed of in the above terms.
(Pronounced)