ORDER
K.D. Mankar, Member (T)
1. The dispute in the instant appeal relates to availment of modvat credit against certain invoices which were made ineligible vide amendments made to Rule 57G of the Central Excise Rules 1944. The appellants are pleading that the invoices in respect of which the credit is claimed are NOT the ineligible ones. Departmental authorities held the opposite view. Hence the appeal.
2. Heard both sides.
3. The proviso to Rule 57 G(2) (i), prescribes a list of duty paying documents against which credit can be taken. These are listed as serial Nos. (a) to (j). Entries at serial Nos. (e) to (g) are relevant for the purposes of the present controversy.
(e) an invoice issued by the 1st stage dealer.
(f) an invoice issued by a second stage dealer.
(g) an invoice issued by a dealer on or before the 31st day of August 1996
At Sub-clause (ii) it is further provided that in respect of invoices referred to in Sub-clause (g) of Clause (i) of this proviso, no credit of duty paid on inputs shall be taken after the 30th September 1996.
4. On going through the order-in-original I note that the adjudicating authority has concluded that, “in respect of invoices issued by the dealer, including the first stage and second stage dealers prior to 1.9.96, the same shall be valid for availing modvat credit only upto 30.9.96”. The order-in-appeal proceeds entirely on different and new grounds which are not even mentioned in the show cause notice.
5. In this connection I observe that the original authority had failed to read properly the provisions of the rules as extracted above. He holds that, all types of dealer’s invoices became in eligible, whereas it is clearly mentioned in the rule that the dealer’s invoices mentioned at Sub-cause (g) alone are ineligible. Though against the said sub-clause only the phrase “dealer’s invoice” figures, this phrase has to be read in conjunction with the entries against preceeding sub-clauses, namely those listed against (e) and (f). The entries against (e) & (f) pertain to first stage and second stage dealer’s invoices. Therefore the third entry against Sub-clause (g) has to be read as a dealer’s invoice which is other than the one specified against (e) & (f). There were also invoices namely invoices issued by the 3rd stage dealer s invoices, which were permissible duty paying documents and on reading all the entries from (e) to (g) it becomes obvious that the entry at serial No. (g) has to be read as the one pertaining to the 3rd stage dealer’s invoices, though the term used is only dealer’s invoice.
6. On the basis of above analysis it is apparent that only 3rd stage dealer’s invoices are ineligible from 1.9.96 onwards. On going through the copies of the invoices under dispute I notice that the invoices have been issued by the importers. Hence the question of applicability of ineligibility contained in Sub-clause (g) of the proviso to Rule 57 G (2) (i) as alleged -does not arise.
7. Consequently the orders of the lower authority are set aside and the appeal of the appellants is allowed with consequential reliefs if any, in accordance with law.
(Operative part Pronounced in Court)