ORDER
D.N. Panda, Member (J)
1. The matter in controversy in this appeal is whether in absence of proof of deposit of the duty by seller of input manufacturer, the buyer assessee is entitled to the credit of such duty appearing in the purchase invoice.
2. The Ld. Counsel appearing for the appellant submitted that in para 3.6 of the order of adjudication such dispute was resolved observing that appropriate legal steps have been taken by the Excise Authorities against the selling manufacture of inputs for which the assessee should get input credit. Also he submitted that the case of the selling manufacturer was set aside by Tribunal without finding fault. He relied on the Board circular No. 29 of 2000 dt. 31/3/2000 and submitted that it was not at all responsibility of the assessee to ensure to the Revenue that the selling manufacturer has deposited duty collected from him. It was the only necessity to ensure that the sale invoice exhibits the duty amount for appropriate credit. Therefore, the Ld. Adjudicating Authority has passed a right order on the basis of law, dropping the proceeding.
3. The Ld. JDR appearing for revenue submitted that there shall be no denial of the credit of duty on input if excise duty on the input was deposited by the seller manufacturer when the invoice was issued to the buyer in respect of goods covered by circular No. 29/2000-CE dt. 31.3.2000. But para 3.6 of order of adjudication itself having raised controversy and finally found that the duty liability by the seller was not discharged, the appellant is not entitled to any benefit under the above notification No.
4. Heard both sides and perused the record.
5. To resolve the controversy, It would be appropriate to remit back the matter for finding evidence of payment of Excise Duty by the Seller manufacturer on the input sold to the assessee which was subject matter of controversy in para 3.6 of order of adjudication read with the finding of the Ld. Commissioner (Appeal) at page 2 of the order dated 23/3/2004. If the duty was realized from the manufacturing seller on the input sold to the Appellant, there is no necessity to deny benefit of the circular to the appellant if allowance of such benefit has already been decided by the Tribunal by order dated-28/11/2003 in appeal case No. 1337-928/2003 as submitted by the Appellant in respect of the selling manufacturer of input.
6. With the aforesaid finding and observation, appeal is allowed by way of remand to the learned Adjudicating Authority to consider the aforesaid limited issue on the basis of documents that shall be placed by the Appellant, granting reasonable opportunity of being heard to the appellant at the interest of justice.
(Dictated and pronounced in the Court)