ORDER
G.R.Sharma
1. These two appeal because they pertained to the same assessee though the issues are slightly different, were taken up together and are being disposed of by this common order.
2. Arguing the case for the appellant Shri J.P.Kaushik, Ld. Counsel submits that in Appeal No.E/2853/2000-NB the allegation of the Department was that particulars regarding quantity received and the duty paid in invoices 1727 and 1730 both dt.12.10.94 did not tally with the particulars shown in the manufacturer’s invoices in-as-much as the quantity of the goods and the amount of duty passed on to the appellant is shown higher than that shown in the particulars of manufacturer’s invoices. Ld. Counsel submits that a look at the invoice No.1727 dt.12.10.94 will show that the quantity is 6.460 m.t. and the duty paid on this is shown as Rs.13,666/-. He submits further that certificate furnished from M/s. Rakesh Steels against that if we look at/Col.Nos.3&4, the quantity has been shown as 6.460 m.t. and the quantity on which the original manufacturer paid duty was shown as 6.420 m.t. Ld. Counsel submits that Steel Mills while despatching the goods take the nominal weight whereas at the time of sale of these goods by stock Yards to the actual user, actual weight is taken. In the instant case the appellant had received a larger quantity. Thus sometimes, there ils difference in quantity on which duty was paid by the manufacturer and the quantity actually received by the consumer. The difference may be on the higher side or the lower side meaning thereby that sometime that goods received may be a little more than the quantity on which duty has been paid but credit has been restricted to the quantity on which duty was paid by the manufacturers. He submits that similar issue came up before the Tribunal in the case of Kansal Enterprises VS CCE, Chandigarh reported in 2000(36)RLT.915. He submits that in that case the Tribunal held that Modvat credit may be allowed n the smaller quantity on which the manufacturer had paid duty.Same is the position regarding the second invoice.
3. Regarding the second Appeal No.E/2854-2000/NB Ld. Counsel submits that the allegation of the Department is that invoice at S.No.20 “Invoice No.13412 dt.26.8.94” of M/s. Bansal Steel Industries, the quantity is given in bundles whereas as per additional documents the quantity in the manufacturer’s invoice is in meters and that the duty element could not be corelated. Ld. Counsel refers to invoice of M/s. Bansal Steel Tubes Ltd. and submits that no doubt under the description col. the meters are not mentioned. He submits that M/s. Bansal Steel Tubes Co. explained that the description of goods and quantity under this invoice was G.I.Pipe, 3972.63 meters 1/2 meters and 1903.61 meters 3/4 meters. Ld. Counsel submits that this certificate issued by the suppliers sets all the doubts at rest. He submits that the position has thus been clarified and since duty is advalorem the number of pipes etc. are only for purpose of identification of the goods and will not effect the actual amount of duty paid. He submits that in view of the clarifications given the appeals may be allowed.
4. Shri S.C.Pushkarana, Ld. reiterates the finding os the authorities below.
5. I have heard the rival submissions. On careful consideration of the submissions made I find that the position has been ampli-illustred and clarified by the Counsel of the appellant. In the circumstances, I hold that Mdvoat credit is admissible to the appellants in so far as invoice of Rakesh Steels, Chandigarh are concerned. Modvat credit to the extent of duty paid on little smaller quantity as paid by the manufacturer shall be admissible to the appellant.
In so far as the question of the description of the goods in the case of Bansal Steel Tubes Co. is concerned, I am satisfied with the explanation furnished by the Ld. Counsel based on the invoice and the clarification given the position has been amply clarified. In the circumstances, the appeals of the appellant namely M/s. Kansal Industries are allowed. Consequential relief, if any, shall be admissible to the appellants in accordance with law.
Order dictated in the Open Court.