ORDER
Lajja Ram, Member (T)
1. M/s. N.G.E.F. Limited being aggrieved with the Order-in-Appeal No. 86/94 dt. 31.3.94 passed by the Commissioner of Central Excise, Bangalore had filed the appeal which was received in the Registry on 5.5.97. As the appeal was filed beyond the prescribed period of limitation, the appellants alongwith the appeal filed an application for condoning the delay.
2. Shri A.S. Monnappa, Ld. advocate appearing for the appellants submitted that the appellants had agitated the matter regarding Board’s Circular with regard to availing the MODVAT Credit on endorsed gate passes with the Hon’ble High Court of Karnataka at Bangalore, and under their order dt. 27.3.97, the Hon’ble High Court had given the liberty to the Petitioner to file an appeal before the appellate authority within 6 weeks from that date, and recorded the submissions of the Ld. Central Govt. Standing Counsel appearing for the Revenue that if the petitioner files the appeal within 6 weeks from that day then the department would not raise any objection with regard to period of limitation. Shri Monnappa also submitted that subsequently they have sought clarification from the Hon’ble High Court and under order dt. 12.12.97 the High Court had observed that the petitioner had made out justifiable ground to condone the delay.
3. For the Revenue Shri Rama Rao, departmental representative is present.
4. Taking note of the orders of the Hon’ble High Court and the facts and circumstances of the case, the delay in filing the appeal is condoned.
5. Shri A.S. Monnappa, Ld. advocate submitted that the matter is short and is covered by the tribunal decision and that the appeal itself be taken-up for hearing.
6. The Departmental Representative had no objection for taking-tip the appeal for hearing but submitted that authenticity of the documents is involved and as the duty paid character of the goods has to be examined, it would be in the fitness of things, if the matter is remanded back to the jurisdictional Asst. Collector.
7. The Ld. advocate appearing for the appellants referred to the tribunal decision in the case of Hindustan Lever Ltd. v. CCE Order No. 188/97 dt. 3.1.97 in appeal No. E/1727/96/MAS. He also referred to the decision of SZB in the case of Eskayef Ltd. v. CCE, Bangalore Order No. 1643/1996 dt. 7.10.96 in appeal No. E/2008/95/MAS. Reference was also made to the Bombay High Court decision in the case of Bombay Goods Transport Association v. U.O.I. .
8. I have carefully considered the matter. The Asst. Collector of Central Excise had rejected the permission to take MODVAT Credit on the basis of attested photocopy of the original gate pass on the ground that the Central Board of Excise and Customs had withdrawn the facility vide Trade Notice No. 3/93 dt. 7.1.93. The appellants had pleaded that the original gate pass had been lost. The Asst. Collector of Central Excise had denied the credit on the ground that the Board’s circular allowing the credit on the basis of authenticated photocopy of the original gate pass had been withdrawn. The Collector of C.Ex (Appeals) had confirmed the view taken by the Asst. Collector on the ground that the Asst. Collector was the proper authority for rejecting the permission to avail MODVAT Credit in such a situation.
9. I consider that when it is established that the original gate pass has been lost, the Asst. Collector of Central Excise should have caused investigations with regard to authenticity of the duty paid nature of the goods and the veracity of the grounds taken up by the assessee. The order passed by the Asst. Collector dt. 25.11.93 is extracted below:–
The matter has been examined in the light of the Instructions contained in Board’s Circular No. 25/92 ex-8 (F.No. 267/60/91 ex-8) dated 15.12.92 and Central Excise Trade Notice No. 3/93, dated 7.1.93. The Board has withdrawn the facility of availing in case the original G.P.I is lost in transit. Hence, no credit would be allowed based on the certified copy or authenticated photocopy of the original G.P.I on the ground that the original G.P.I is lost.
Hence, the above request of M/s. N.G.E.F. cannot be considered.
10. It is seen that the Asst. Collector has not gone into the merits of the case and had rejected the request of the assessee on the ground of the withdrawal of the Board’s circular. In their application dt. 28.10.97, the appellants had declared that they had not availed MODVAT Credit on the original gate pass since the same was not received by them and that they had not sold the said goods to any other party.
11. In this connection, the Bombay High Court in the case of Bombay Goods Transport Association v. U.O.I. had held that the MODVAT Credit was available when gate pass or invoice was lost provided the duty paid character of the inputs could be proved by other genuine documents. They had also observed that the duplicate copy of the excise documents obtained under Rule 224B of the Central Excise Rules, 1944 could be filed for proving duty paid character of the goods for the purposes of the MODVAT.
12. I find that no opportunity was given to the assessee to substantiate their claim otherwise as observed by the Bombay High Court. This decision had been referred to by the tribunal in the orders referred to above by the appellant’s counsel.
13. Taking all the relevant considerations into account, I consider it to be a fit case for remand to the jurisdictional Asst. Commissioner of Central Excise who should re-examine the matter afresh in the light of observations made by the Hon’ble Bombay High Court and then re-decide the matter afresh after giving an opportunity to the appellants to be heard and then pass a speaking appellable order as per law.
14. The appeal is thus disposed of by way of remand.
Pronounced and dictated in the open court.