ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this Appeal filed by Revenue is whether Modvat credit was available to the respondents M/s. HCL Infosystems Ltd. on the strength of invoice which were not in accordance with the law.
2. Shri Rajeev Tondon, ld. Senior Departmental Representative submitted that the Modvat credit of the duty paid on the inputs can be availed of only if the inputs are received under the cover of duty paying documents; that the respondents had taken credit on the basis of invoices which did not contain entire information as required or were defective; that the Commissioner (Appeals) has listed such 15 short comings in the impugned Order; that some of the short comings are duplicate copy of invoice was of yellow colour instead of pink colour as required under Rule 57GG, the date and time of removal of goods not mentioned, duty per unit of goods not mentioned, rate of duty not mentioned, vehicle registration no not written in the invoice, invoices are written without using carbon paper, etc. He, further, submitted that the Commissioner (Appeals) has allowed the Modvat credit to the respondents considering these lapses as minor procedural lapses and on the ground that invoices had been duly authenticated by the proper officer; that these lapses are not minor procedural lapses; that all these requirements have been prescribed under Notification; that Notification No. 3/95 C.E. (NT) dated 30-5-95 prescribed that the colours of the invoices shall be white, pink, yellow and green respectively for original, duplicate, triplicate and quadruplicate copies; that the various details to be mentioned in the invoices were also prescribed by the said Notification; that it is settled law that any exemption notification has to be interpreted strictly and not liberally. These requirements prescribed by Notification are mandatory in nature and if any invoice did not contain any of these information, it is not valid duty paying documents on the basis of which Modvat credit can be claimed. He relied upon the decision of the Larger Bench of the Tribunal in the case of Commissioner of Central Excise, New Delhi v. Avis Electronics Pvt. Ltd. – 2000 (117) E.L.T. 571 (Tri.) wherein it was held that “insistence on documents evidencing payment of duty on the inputs as prescribed by Rules is not a technality to be complied with for availing of the Modvat credit…… When a particular thing is directed to be performed in a manner prescribed by Rules, it should be performed in that manner itself and not otherwise.” He therefore, contended that as the invoices in question were not as prescribed by Notification, the respondents were not eligible to avail the Modvat credit.
3. Opposing the Appeal Shri M.P. Devnath, learned Advocate, submitted that it is not the case of the Revenue that the inputs mentioned in the invoice in question have not been received by the respondents; that further it has also not been alleged that appropriate duty has not been paid in respect of inputs received under the cover of the invoices in question; that all the discrepancies mentioned in the show cause notice are of technical nature which are also very minor in nature; that in their own case the Appellate Tribunal vide Final Order No. A-1293/2002-NB (S), dated 17-10-2002 has allowed the Modvat credit though the invoice was not of pink colour, following the Board’s Circular No. 441/7/99 CX, dated 23-2-99. He also relied upon the decision in the case of Commissioner of Central Excise, Kanpur v. M/s. Good-lass Nerolac Paints Ltd. – Final Order No. A/1281/2002-NB (S), dated 18-10-2002. Reliance has also been placed on the decision of the Larger Bench of the Tribunal in the case of Kamakhya Steel Pvt. Ltd. v. Commissioner of Central Excise -2000 (121) E.L.T. 247.
4. We have considered the submissions of both the sides. The Central Board of Excise & Customs, under Circular dated 23-2-99 has issued the guidelines to the departmental officer in respect of Modvat credit in pursuance of Notification No. 7/99-C.E.-N.T. dated 1-12-99, empowering the Assistant Commissioner to allow the credit ignoring minor procedural lapses in filing the declaration or in invoice/documents on the basis of which credit is to be taken. It has been mentioned in the said Circular that the Assistant Commissioner, before issuing show cause notice for wrong availment of Modvat credit on any procedural grounds, shall conduct an inquiry with regard to duty paid nature of the goods, ensure that necessary information as mentioned in the Notification are available on the invoices and satisfy himself whether the goods have been used or are intended to be used as contemplated in the Modvat Rules. It is further mentioned that in the Circular that “in case the assessee’s invoice contains the details namely the description of the goods, assessable value, name and address of the factory or warehouse where the goods are to be received and if the assessee has filed the declaration as contemplated in the Modvat Rules, the Assistant Commissioner having jurisdiction over the factory would allow the credit of duty so paid, after making inquiries as above”. As rightly submitted by the learned Advocate for the respondents, Revenue has neither alleged non receipt of the goods by the Appellants nor the duty paid character of the goods. The Modvat credit cannot be denied to the respondents only for procedural lapse. The ratio of the decision in the case of Avis Electronics is not applicable as in that matter, the duplicate copy of the invoice which is specified duty paying documents was not available. In the present matter it is not the case of the Revenue that the specified duty paying documents is not available. The only allegation is that one or the other information was missing. In view of this, the Appeal filed by the Revenue is rejected.