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2015 (3) TMI 1089 - AT - Central ExciseDisallowance of MODVAT Credit - appellant has availed credit in RG 23A Part-II on the basis of subsidiary GP-1 (gate pass) at a date prior to the issue of said subsidiary GP-1 - Held that:- Subsidiary GP-1 were issued on 23.02.1992, 03.03.1992 and 03.04.1992 and the credit there against was taken in RG 23A Part-II on 14.03.1992, 18.03.1992 and 18.04.1992 respectively. Therefore the allegation of the Revenue is apparently wrong on the face of the record. As regard the credit amount of ₹ 31,087.30 availed as deemed credit on copper wire on going through the invoice it was observed that the supplier has sold the material to the appellant under description of 'cable' (copper wire) GR-8647 and under chapter heading 74.08 From the said description it is clear that even though the appellant treated the said copper material as waste & scrap, but the supplier has sold the material as copper wire which is classifiable under chapter heading 74.08. As per the Board Notification No. 342/1/88-TRU MF(DR) dated 12.07.1990 the deemed credit was allowed in respect of copper waste and scrap falling under chapter heading No. 74.04 only. In view of this the deemed credit of MODVAT cannot be allowed on the goods namely copper wire falling under 74.08; therefore I uphold the denial of MODVAT credit. Even if GP-1 was not endorsed in favour of the appellant but if input covered under the said GP-1 was received in the factory, account for the same in records, purchases were booked in the name of the appellant and payment their against was made by the appellant these are satisfactory evidences to established that the inputs covered under the said unendorsed GP-I were received by the appellant and used in the manufacture. However from the proceeding it is observed that such examination were not carried out, therefore I am of the opinion that for the purpose of this verification, the matter should be remanded to the original adjudicating authority to decide a fresh the eligibility of MODVAT credit. Appellant in RG 23A part-II but no accounting of the material have been made in RG 23A Part-I, I am of the view that this is only technical lapse. The lower authorities have not disputed the receipt of the input and use thereafter in the manufacture of final product. The entry in RG 23 A Part-1 is only to show the receipt of input but if the receipt is otherwise not under dispute, merely because entry was not made in RG 23 A Part-1 MODVAT credit can not be denied. When the input was cleared admittedly no GP-I was issued, however the GP-I issued at a later date. This shows that the input was received by the appellant but no GP-I was received of that material at the relevant time. It was statutory provisions that goods cannot be cleared out of the factory without issue of GP-1 and debit of duty either in Profit & Loss Account or in MODVAT account. Therefore, I am of the view that GP-1 of a later date, cannot be considered as a duty paying document in respect of input cleared from the supplier and received by the appellant prior to the date of GP-1 - Appeal disposed of.
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