ORDER
Smt. Archana Wadhwa
1.
The prayer in the stay petition in for dispensing with the condition of predeposit of duty amount of Rs.1,64,801/-(rupees one lakhs sisty four thousand eight hundred & one only) confirmed against the appellant by disallowing the modvat credit.The modvat credit has been disallowed on the ground that the same has been taken on the basis of original invoice; that the original invoice was endorsed by their head office and the credit in some of the cases have ben taken after six months from the date of issuance of the invoice.
2. I have heard Shri K.K.Banerjee, ld.adv.and Shri A.K Chattopadhyay, ld.JDR.
3. From the impugned orders I find that the Asstt.Commissioner is not doubting the loss of the duplicate copy of the invoice.However, he has observed that duplicate copy was lost in the factory before taking credit and not in transit and as such the provisions of rule 57G(2A) will not apply.My attention has been drawn to the Tribunal’s decision in the case of Bharat Rull Indus.Pvt.Ltd.-1999(34) RLT 430(CEGAT) wherein loss of duplicate copy in the factory was also considered to be loss in transit.Similarly it is the contention of the appellant that inasmuch as the duplicate copy was lost and the invoice was in the name of the head office, the original copy of the invoice was endorsed by their head office.As regards the taking of credit after six months, Shri Banerjee, submits that the permission to avail the credit on the basis of original invoice was sought by them within the period of six month and it is the Revenue who took longer time to decide their application.As such he submits that non-availment of modvat credit within a period of six months was on account of delay on the part of the REvenue,for which the appellant should not be penalised.
4. After taking into consideration the above submissions, I find that the earlier two issues are covered in favour of the appellants. As regard taking of credit after a period of six months in one of the invoices, the larger Bench decision of the Tribunal in the case of Kusum Ingots-2000(102)ELT 214(LB) has held that the credit cannot be taken beyond the period of six months from the date of issuance of the show cause notice.The duty involved in the said invoice is to the tune of around 45,000/-.Accordingly I direct the applicant \appellant to reverse the credit of Rs.45,000/-(rupees forty five thousand only)from their RG-23A part-II.In case of non-availability of credit in the said records they will deposit the same in cash within a period of four weeks from today.Subject to deposit of the above amount, the balance amount of duty is dispensed with and its recovery stayed during the pendency of the appeal.Matter to com,e up for compliance on 5.7.2001.Subject to ascertaining compliance appeal shall also be taken up on the said date.
Dictated in the court.