ORDER
S.L. Peeran, Member (Judicial)
1. All these three appeals arise from common Order-in-Appeal Nos, 186 to 188/2000 dt. 8.9.2000 passed by the Commissioner (Appeals). The Commissioner (Appeals) in the impugned order has confirmed the orders in original holding the appellants are not entitled to Modvat credit in view of the improper documents produced by them.
2. The appellants are manufacturers of MS Rods and they were receiving inputs in proper documents from PSU Units viz. Steel Authority of India who had supplied them 9117.110 M.Ts. under AR 4s for export through Kakinada Port and a part quantity through Vizag Port. Out of which they exported 3207.95 M.Ts and the rest were diverted for home consumption. M/s. SAIL has paid duty of Rs. 80,95,549/- vide TR 6 challan No. 203 dt. 10.8.98. The Commissioner (Appeals) has held that TR 6 Challans are not correlatable and no certificate from the Customs or Excise authorities had been submitted certifying the payment of duty on the impugned goods duly supported by the credible and corroborative documentary evidence.
3. The Ld. Consultant submits that this was not the issue before the Commissioner (Appeals). They had taken credit in part and they had produced all the documents to show that the duty liability had been correctly discharged by SAIL and it was correlatable. He had produced all the documents including the certificate from SAIL to show that that they were registered dealers and the CBEC had recognised them as a Registered dealer. He relies on the judgement rendered in the case of Devi Dayal & Mahendra Corporation vs. CCE reported in 1995 (75) ELT 659 in which it was clearly laid down the certificate issued by the PSU is to be taken as evidence for payment of duty as per clarification issued by the Board vide letter No. 267/17/88-CX dt. 9.2.88. He further submits that the show cause notice was vague and no grounds had been delineated to show that the documents were improper. He submits in an identical situation WRB in the case of Finolex Industries Ltd. vs. CCE reported in 1999 (112) ELT 547 held that the entire proceeding was set aside solely on the ground that the show cause notice does not mention how the offence had taken place. Therefore, he submits that as the Commissioner (Appeals) has travelled beyond the show cause notice and show cause notice also alleged that the appellants had not produced all the duty paying documents including the Registration Certificate of PSU. On the other hand the Ld. DR relied on the judgements and the Larger Bench decision in the case of Balmer Lawrie & Co. Vs. CCE reported in 2000 (116) ELT 364 (T) and submitted that the appellants are required to produce correct documents which are as per law and if the documents are not as per law they are not entitled to the benefit. Therefore, the Commissioner was right in holding that the documents were not correlatable. Hence, pleas raised by the Ld. CA that the documents were not improper is not acceptable.
4. On a careful consideration of the submissions made by both sides and perusal of the records I am satisfied that the appellants have made out a good case for de novo consideration for the reason that their stay application had been allowed by granting waiver of pre deposit of stay recovery. However, the Commissioner has raised a doubt about the correlatablity of the documents I am of the considered opinion that when such a doubt has been raised for the first time by the appellate authority then it ought to have remanded to the original authority for verification of the documents. Since the Commissioner (Appeals) has not done so and rejected the matter straight away, I am of the considered opinion that the appeals are required to be remanded to the original authority for de novo consideration. The appellants shall be granted an opportunity to show that they are entitled to the benefit of Modvat credit in terms of the judgements cited by them, and also show that the show cause notice did raise the grands dealt by Commissioner (Appeals). The appellants shall be give full opportunity to establish that the show cause notice is vague and they have received the proper documents such as TR 6, Invoice, AR 4, Delivery Challan and other documents evidencing duty payment and they were registered dealers and that there was no contravention in terms of law. In view of that the appeals are allowed by way of remand to the original authority.
(Order dictated and pronounced in the open court)
