9911796707
TMI Blog2006 (8) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... licate copy of the invoice was lost in transit. On being pointed out by the range authorities appellant reversed the Modvat credit taken on original invoice on 13-7-99. Appellant applied to the Jurisdictional Assistant Commissioner on 10-8-99 for granting them permission to avail modvat credit and on the same date availed the credit in RG 23A Part II. Show cause notice was issued to the appellant on the ground that their application for availing credit on original invoice has been rejected by the Jurisdictional Assistant Commissioner. The adjudicating authority confirmed the demand, also imposed penalty and sought the recovery the interest on such Modvat credit. On an appeal, Commissioner (Appeal) also concurred with the views of the lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-2-99 and consumed in the factory. Only question being disputed is that the appellant had not applied for the permission from the authorities before the availment of the credit on original invoice. The Commissioner (Appeals) has rejected the appeal of the appellant on the following ground:- "But in this case I find the appellant had taken credit suo motu even without waiting for the permission of the competent authority. As such their action is in violation of the letter and spirit of the said rule. The question of actual receipt of goods in this regard is irrelevant, as no enquiry by the proper officer to satisfy himself regarding the entire matter, as envisaged in the said rule coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacturer, after nine months." 7. From the plain reading of the above said rule, it can be seen that the credit of inputs received in the factory can be availed on the original invoice if the duplicate of the invoice has been lost in the transit subject to the satisfaction of the Assistant Commissioner of Central Excise that the inputs has been received in the factory and the duty was paid on such goods. I find that in this case, both these important aspects are undisputed. If that be so, the Assistant Commissioner's letter dated 22-11-99 indicating to the appellant that cannot be any post facto sanction does not hold ground and is against the principles of the law under Rule 57G(6). It is for the Assistant Commissioner to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e." 8. Accordingly, considering the whole case in its entirety read with Rule 57G(6) and order of the Larger Bench case in the Avis Electronics Pvt. Ltd., I find that the Jurisdictional Assistant Commissioner should have gone by the spirit of the law as envisaged in the Rules 57G(6) and considered whether the inputs have been received and duty liability has been discharged and then accorded sanction to the appellant for availing the Modvat credit on the original duty paying document as the duplicate copy of the duty paying document was lost in transit. I find that the appellants had produced an affidavit of the transporter, along with the applications, made to the Jurisdictional Assistant Commissioner. On the face of such an ove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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