ORDER
Smt. Archana Wadhwa
1. After dispensing with the condition of predeposit of duty and penalty I take up the appeal itself with the consent of both the sides.
2. The modvat credit has been disallowed to the appellants on the ground that the same has been availed on the basis of the invoices which was in the name of their head office whereas the material has been consumed in their factory and secondly on the ground that the entire consignment was not received in the factory in original packing.
3. After considering the submissions made from both the sides I find that the first issue is covered by the various decisions of the Tribunal in favour of the appellants. The Tribunal in the case of Larsen & Toubro 1994 (72) ELT 948 (T) held that the invoices in the name of the head office are eligible modvatable documents even if the goods are received in the factory. To the same effect is another decision of the Tribunal in the case of Stadmed Pvt. Ltd. v. CCE, Allahabad-1998 (102) ELT 466(T). The original objection of the Revenue that the said invoice in the same of the head office has not been endorsed has also been met by the appellants inasmuch as the defect pointed out has been rectified. As such I do not find any ground for rejection of modvatable on this basis.
4. As regards the Revenue’s objection of non-receipt of the goods in original packing, I find that there was no such allegation in the show cause notice and no proposal to deny the credit on this basis. As such the impugned order has travelled beyond the show cause notice. In any case I find that the appellants have submitted transporters certificates showing the receipt of the entire consignment in original packed condition in their factory. Inspite of that the Asstt. Commissioner has observed that the appellants have not proved the receipt in original packing. However, the receipt of the inputs and their utilisation in the manufacture of the final product is not being doubted by the Revenue.
5. In view of the foregoing I set aside the impugned order and allow the appeal with consequential relief to the appellants. Stay petition also gets disposed of.
Dictated in the court.