ORDER
Archana Wadhwa, Member (J)
1. The respondents are absent inspite of today’s notice of hearing having been sent to them. Accordingly I have heard Shri A.K. Mondal, ld. SDR appearing for the Revenue.
2. As per the facts on record show cause notice was issued to the respondents proposing denial of Modvat credit of Rs. 26,579/-(rupees twenty-six thousand five hundred and seventy-nine) availed by them on the original copy of the invoice dt. 24-6-94. On adjudication, the Asstt. Commr. held that he was satisfied about the loss of the duplicate copy of the invoice during transit and was also satisfied about the duty paid character of the inputs, their receipt in the factory of the assessee and its utilisation in the manufacture of the final product. Accordingly he dropped the proceedings.
3 Revenue did not find the above order as legal and challenged the same by way of filing a revision application before Commissioner (Appeals). Commissioner (Appeals) did not find any favour in the Revenue’s contention and rejected their appeal. Hence the present appeal.
4. After going through the impugned order passed by the
Commissioner (Appeals) I find that he has observed as under :-
“I have carefully gone through the case records. On perusal of the same it is observed that initiation of proceeding for denial of MODVAT credit was that the respondent took the credit against the original copy of invoice instead of duplicate copy as envisaged under the law. However, the Adjudicating Authority allowed the credit as he found that duty paid nature of inputs, its receipt in respondents’ factory and use in manufacture of final products were not disputed. It is further observed that the respondent also submitted an affidavit of the driver of the truck who transported the goods from the factory of the manufacturer to the respondent’s factory who affirmed that duplicate copy of the invoice was lost in transit. The relevant Notification and Board’s circular stipulates that credit can also be taken on original copy of Invoice subject to satisfaction of the Asstt. Commissioner. In the instant case the Adjudicating Authority is none but Assistant Commissioner who categorically held that there was no reason for not getting satisfied with the condition provided under Rule 57G(2A) for availing MODVAT credit on original copy of invoice. And his satisfaction was being challenged in the present appeal by way of review. The instant attempt of the department has prima facie no merit and is infractuous.
5. As rightly observed by the appellate authority, it is the satisfaction of the Asstt. Commissioner about the loss of the duplicate copy of the
invoice, which is envisaged by the Rule 57G(2A) and the adjudication order
having been passed by the Asstt. Commissioner on his being satisfied, cannot
be considered to be unjustified order. The Revenue’s grievance is that the
assessee should have taken the permission of the Asstt. Commissioner before
adjudication and the permission given in the order itself is sort of post-
permission, which is not in accordance with law. However, I find no force in
the above contention of the Revenue. The Larger Bench of the Tribunal in the
case of M/s. Kamakhya Steels – 2000 (121) E.L.T. 247 (Tribunal-LB) has laid
down, by relying upon the Board’s Circular that minor procedural and technical irregularities should not be made the basis for denying the just and due
credit to the assessees. As such I find no merits in the Revenue’s appeal and
reject the same.