ORDER
U.L. Bhat, J. (President)
1. This appeal is directed against Order-in-Appeal No. 206/97 dt. 29.5.97 passed by the Commissioner (Appeals), Bangalore confirming the Order-in-Original No. 66/95 dt. 26.5.95 passed by the Asstt. Collector, Bangalore.
2. Appellant, engaged in the manufacture of Pressure Cookers and parts thereof, was availing facility of Modvat Credit under Rule 57A of Central Excise Rules, 1944. Scrutiny of the relevant documents showed that appellant had availed Modvat Credit of Rs. 2,61,179.25 during the period from Nov’94 to Feb’95 on the strength of the invoices which were not in conformity with the requirements of various rides. Accordingly, SCN dt. 31.4.95 was issued requiring the appellant to show cause as to why the irregular Modvat Credit should not be disallowed under Ride 571 of the Rules read with Section 11A of the Central Excise Act, 1944 and an amount equivalent to such credit should not be recovered. Though the appellant resisted the notice, the Asstt. Collector confirmed the proposal, in the SCN, and his order has been confirmed by the Commissioner (Appeals).
3. Since there is a contention for the appellant that the lower authorities have traversed beyond the SCN, it is necessary to examine the averments in the SCN and the annexure to SCN. The notice does not specify alleged irregularities in the invoices. The annexure referred to 2 1 invoices with the common defect noted as follows:
No original duty paying particulars. No marking of invoices. Duty amount not written in words.” There was additional defect indicated as “‘no printed serial number” in 4 of the invoices.
4. The Asstt. Collector held that it is the requirement of Rule 52A (3) that copy of invoice on which Modvat Credit could be availed is the duplicate copy marked as “duplicate for transporter” and the copies on which appellant availed Modvat were not so marked. He noted, according to Rule 52A(vi), each invoice should bear printed serial number for the whole financial year and the invoice should contain all relevant particulars and these requirements were also not specified in the instant invoice and therefore they cannot be regarded as valid duty paying documents.
5. The Commissioner (Appeals), however noticed some more details such as “value not shown in figures”, “details of manufacturer not shown”, “value not shown”, “details of dealers not shown”, “purchases from M/s. Sanjay Steels was third sale” and “serial number in invoice missing”.
6. All these alleged defects, “duty amount not written in figures, details of manufacturer not being shown, details of dealers not shown, purchases from M/s. Sanjay Steels being third sale, Serial numbers missing” were not pointed out in the SCN and therefore, we do not think that these defects could be held against the appellant. Apparently appellant produced before the Commissioner (Appeals) copies of the invoices to contend that there were no defects as alleged. The Commissioner (Appeals) purported to look into the invoices in the records in the case file and held that details of invoices of the original manufacturer i.e. number of invoice, date of issue had not been furnished in the 7 invoices of the dealer (128, 126, 125, 155, 158, 159, 148). He also held that copies produced at the time of personal hearing contained particulars regarding details of manufacture which were not found in the invoices in the file and therefore these particulars must have been manipulated by the appellant. He also noticed that invoices 117, 63 & 64 were invoices by a third dealer on which Modvat Credit cannot be availed. We have already indicated that there was no such allegation in the SCN. Regarding 11 invoices, he noticed that duty payment particulars by the original manufacturer like invoice numbers, duty payment amounts etc., were not furnished in the dealer’s invoices and copies were not marked as “duplicate for transporter”. On this ground, he confirmed the order passed by the Asstt. Collector. One of the defects alleged and found was that amounts of duty were not written in words but only in figures. According to the appellant, the decision indicates that this defect by itself is not a serious one and cannot be taken into consideration. This aspect was not considered by the lower authority.
7. Regarding absence of details of the manufacturer, we find copies of all the invoices produced before us contain name of the manufacturer. The copies of the invoices available in the file of the Asstt. Collector are not before us. Appellant vehemently denies that there was any manipulation in the copies of invoices produced before the Commissioner (Appeals) or before the Tribunal. We are of the opinion that this calls for verification by comparison after due notice to the appellant by the adjudicating authority.
8. Regarding defect of non-marking on some of the invoices as “duplicate copy for the transporter”, it is the contention of the appellant that there are decisions of the Tribunal like the one reported in 1997 (96) ELT 606 holding that this could not be a serious irregularity and question of reversal may not arise if Modvat Credit has been availed on the basis of first copy. This aspect was also not considered by the lower authorities.
9. In connection with the allegation of absence of printed serial numbers in 4 invoices, we have examined the copies of invoices produced before us and we find “printed serial numbers” in all the invoices, some at the top and some at the bottom. According to the appellant, lower authorities missed to note printed numbers found at the bottom. This again calls for verification with reference to the invoices originally produced before the department.
10. Ld. JDR contended that invoices at pages 45 to 48 do not contain any number. The copies produced before us show printed numbers at the bottom right side.
11. Regarding absence of duty paying particulars, we find the copies produced before us refer to manufacturer’s invoice numbers, and rate of duty. Appellant produced a chart before the Asstt. Collector and the Commissioner (Appeals) showing correlation between manufacturer’s invoice and the dealers’ invoice. If the department had any doubt about such correlation, the matter could have been examined further. Such examination does not appear to have been made. This aspect also requires further scrutiny.
12. For the reasons indicated above, we get aside the impugned orders and remand the case to the jurisdictional authority for decision afresh after verification as indicated above and after granting the appellant an opportunity of hearing.
Pronounced and dictated in the open court.