ORDER
K.C. Mamgain, Member (T)
1. This appeal is filed by the Revenue.
2. It was argued that the respondent had taken a credit of Rs. 11,631/- on the basis of original invoice. It was pleaded that since the appellants had not approached the Asstt. Commissioner, regarding loss of duplicate copy of the invoice, therefore, they are not entitled for Modvat credit and penalty has been correctly imposed on them. The order of the Commissioner is, therefore, allowing the credit is not in order.
3. It was argued for the respondent that their credit relates to October, 1999. On 1-3-97 by Notification No. 6/97-C.E. (N.T.), dated 1-3-97, Sub-rule (6) of Rule 57G was amended to the effect that “if duplicate copy of the invoice has been lost in transit, subject to satisfaction of the Asstt. Commissioner, that the inputs have been received in his factory and duty was paid on such inputs, then a manufacturer may take credit on inputs received”. The only requirement for satisfaction of the Asstt. Commissioner was that the goods have been received in the factory and duty was paid on inputs. This has not been disputed either by the Asstt. Commissioner or by the Department in their appeal. The dispute is only that satisfaction of the Asstt. Commissioner was not obtained for the loss of duplicate copy. The respondents placed reliance on the decision of this Tribunal in case of CCE, Pondicherry v. Morgan Industries Ltd. reported in 2005 (192) E.L.T. 303 (Tribunal-Chennai), where it was held that duplicate copy of invoice lost in transit and credit taken on original copy – If credit admissible on the basis of duplicate copy, there is no rationale for denying it merely because original invoice is produced. After the amendment of Rule 57G, reliance was also placed on the following decisions :-
(1) Mercury Confectioners & Allied Products (P) Ltd. v. CCE, Meerut-II 2005 (191) E.L.T. 790 (Tri.-Delhi).
(2) Dhaulgiree Polyolefins (Pvt.) Ltd. v. CCE 2002 (147) E.L.T. 843 (Tri.-Kolkala).
(3) Ceekay Daikin Ltd. v. CCE, Noida 2005 (191) E.L.T. 740 (Tri.-Delhi).
(4) CCE v. Ludhiana Beverages Ltd. .
4. I have considered the submissions made by both the sides. I find that the Rule 57G(6) of the Central Excise Rules at the relevant time reads as follows :-
Notwithstanding anything contained in Sub-rule (3) or Rule 52A, a manufacturer may take credit on inputs received in his factory on the basis of original invoice, if duplicate copy of the invoice has been lost in transit, subject to the satisfaction of the Assistant Commissioner that the inputs have been received in his factory and the duty was paid on such inputs.
5. Thus, it is clear that on loss of duplicate copy the credit has to be allowed if Asstt. Commissioner is satisfied that the inputs have been received in the factory and duty was paid on such inputs. In this case, no contrary view was given by the Asstt. Commissioner or the Department that the goods were not received in the factory or were not duty paid. The loss of duplicate copy was explained by the respondent before adjudicating authority and also before the Commissioner (Appeals) that the duplicate copy was taken by the Sales Tax authority from the truck driver. Affidavit was also filed to this effect. Therefore, the Commissioner (Appeals) has correctly decided that the present respondents were eligible for credit on the original copy when the inputs have been received in their factory and their duty paid nature is not in dispute. In the circumstances, I do not find any merit in the appeal filed by the Department and the same is accordingly rejected.
Order dictated & pronounced in open Court on 9-1-2006.