ORDER
T. Anjaneyulu, Member (J)
1. Heard both sides.
2. The issue pertains to denial of Modvat Credit of Rs. 1,03,472.32 on the basis that duty paying documents have not been produced in as much as the appellant is not stated to be the consignee in invoice No. 1670 dated 25.7.94 issued by the IPCL.
3. M/s Cosmo Film Ltd. MIDC Chikalthana, Aurangabad are engaged in the manufacture of goods falling under Chapter 39 of Central Excise Tariff Act 1985. The assessee had taken Modvat Credit of Rs. 3,10,416.96 without producing duty paying documents. The assessee had also taken Modvat Credit of Rs. 2,69,093 as CVD against the bills of entry No. 2079 dated 3.8.94 which is in the name of their Delhi Head Office. The finding of the additional Commissioner CCEx Aurangabad is that there is no provision under Central Excise Rules 1944 which allows the credit when the duty paying documents are not accompanying the goods and lost in transit. In respect of second item it is observed that the name of the Assessee given on the declaration appended to the Bill of entry which forms integral part of the said Bill of entry is in the name of Assessee’s Head office at Delhi. The Additional Commissioner has permitted the same basing on the ruling given in the case of Larsen and Tubro v. Collector 1994 (72) ELT 948 (T). Accordingly he has dropped the demand of Rs. 2,69,093 as CVD against the bill of entry No. 2079 dated 3.8.94 and confirmed the demand in respect of first item of Rs. 3,10,416.96.
4. On filing appeal by the appellant, the Commissioner (Appeals) Pune has allowed Modvat Credit in respect of the invoice No. 1514 and 1515 both dated 16.7.94. However in the case of third invoice which is in the name of M/s Chloride Industries, Pune, since the invoice is in the name of entirely different consignee, at a different place as such denied the Modvat Credit. Hence this appeal.
5. The appellants unit is situated at Chikalthana, Aurangabad and their another unit is at Waluj. The appellants have placed purchase order with M/s. I.P.C.L. for supply of 45 MT material specifically mentioning the delivery of material at Chikalthana unit. M/s I.P.C.L. executed this order in full through 5 consignment of 9 MT each under invoice 1514 and 1515 both dated 16.7.94, 1670 dated 25.7.94, 1605 dated 21.7.94 and 1640 dated 22.7.94. In respect of first three invoices, address of the consignee was shown as M/s Cosmo Films Waluj, Dist: Aurangabad and M/s. Chloride Industries Ltd., Chinchwad Pune. Though the purchase orders were in the name of the Chikalthana Unit, the mistake in addressing the invoice to wrong consignee occurred in the office of M/s. IPCL. On receipt of the material, M/s. Cosmo Films, Chikalthana, returned the three invoices to M/s IPCL for rectification. But after rectification, copies of the invoices were lost in transit. The appellants informed the loss in transit of the duplicated copy of invoice to department and followed the procedure prescribed under Trade Notice No. 84/94 dated 11.10.94 for availing modvat credit on the basis of the original copy of the invoice.
6. The disputed invoice found to be in the name of M/s Chloride Industries, Pune which is not concerned to the appellant unit as such Modvat Credit is denied and as a matter of fact the appellant unit which placed the order and also received consignment including under the disputed invoice. Whereas M/s Chloride Industries, Pune did not receive any consignment nor they availed any Modvat Credit on the disputed invoice.
7. The learned Advocate for the appellant has placed reliance on the following decision:
i) Crop Health Products Ltd. v. CCE (Tribunal) [1998 (102) ELT 376]
ii) CCE, Coimbatore v. Carborandum Universal Ltd. (Tribunal) [1997 (83) ELT 357]
iii) NPI Packing Pvt. Ltd. v. CCE, New Delhi (Tribunal) [2002 (51) RLT 543]
iv) Supreme Industries v. CCE, Calcutta (Tribunal) [2001 (128) ELT 496]
v) CCE, Bhopal v. P.C.C. Pole Factory (Tribunal) [2002 (48) RLT 169]
Basing on the principles observed in the aforesaid decision, it is contented that the lapse on the part of the supplier M/s. IPCL in stating “Chloride Industries” as consignee is being technical in nature in the light of the fact that receipt of goods in the factory of the appellants, and non availment of Modvat Credit by Chloride Industries in respect of said invoice, Modvat Credit cannot be denied to the appellant.
8. The learned JDR did not put forth claim any point to substantiate the case for revenue.
9. Having considered the same it is felt expedient to remand the matter to the adjudicating authority for final disposal in the light of above terms.
10. Accordingly appeal is allowed in remand.