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2015 (8) TMI 1057 - ALLAHABAD HIGH COURT

2015 (8) TMI 1057 - ALLAHABAD HIGH COURT - 2015 (324) E.L.T. 264 (All.) - CENVAT Credit - duty paying document - photo copy of the original invoice/triplicate copy of bill of entry - Whether on the facts and circumstances, the modvat credit can be taken on the basis of the photo-stat copy of BOE - Held that:- there is no allegation in the show cause notice that the goods in question were not received under the cover of the relevant documents and that the goods were duty paid. The Assistant Commi .....

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obtained from the bank the exchange control copy of the relevant bill of entry and filed the same along with various other documents. He also executed an indemnity in favour of the Central Excise department to the extent of Modvat Credit availed. The said authenticated exchange control copy of the bill of entry obtained by the assessee from the bank could have been easily verified by the authorities. It is not the case of the appellant that the said document was not verifiable.

No c .....

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aced after the receipt of the goods in the factory. - no merit in the present appeal - Decided against Revenue. - Central Excise Appeal Defective No. - 1 of 2005 - Dated:- 25-8-2015 - Hon'ble Tarun Agarwala And Hon'ble Surya Prakash Kesarwani,JJ. For the Appellant : A. Mahajan, S. Chopra For the Respondent : A. P. Mathur ORDER (Per:Surya Prakash Kesarwani,J.) 1. Heard Sri Amit Mahajan, learned counsel for the appellant and Sri A.P. Mathur, learned counsel for the respondent-assessee. 2. .....

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1944 (hereinafter referred to as the Rules), modvat credit was not admissible to the respondent. 4. Learned counsel for the respondent-assessee submits that there is no dispute that at the time when the goods in question were received in the factory of production, the same were covered by all requisite documents including triplicate copy of a bill of entry but subsequently triplicate copy of the bill of entry was misplaced and, as such, the assessee obtained the exchange control copy of the rel .....

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bmits that neither the receipt of the goods in question in the factory of production under the cover of valid documents is disputed nor it has been disputed by the Central Excise Authorities that the goods have been used for the intended purpose in the factory of production. He, therefore, submits that in the absence of any dispute with regard to the receipt of the goods in the factory for their intended purpose and the duty paid nature, supported by documents as aforementioned, the credit of du .....

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provided in clause (c) of Sub Rule (3) of Rule 57G. However, subsequently, Triplicate copy of the relevant bill of entry was misplaced. Under the circumstances the assessee obtained from the bank the exchange control copy of the relevant bill of entry and submitted the same before the concerned central excise authority. 7. A show cause notice dated 30th June, 1992 was issued by the Superintendent of Central Excise requiring the assessee to show cause as to why the modvat credit amounting to  .....

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(Appeals) Customs and Central Excise, NOIDA which was dismissed vide order dated 31st March, 2003 against which the assessee preferred Excise Appeal No. 1896 of 2003-NB (B) before the Customs Excise and Service Tax Appellate Tribunal, New Delhi which was allowed by the impugned final order No. 363 of 2004-B dated 20th February, 2004. Aggrieved with this order the appellant Department has filed the present appeal. 8. We find that there is no allegation in the show cause notice that the goods in q .....

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by the assessee for defacement. The stand taken by the assessee that the triplicate copy of the relevant bill of entry was misplaced, was also not disbelieved either by the Assistant Commissioner or by the first appellate authority. Since the triplicate copy of the bill of entry was misplaced and, as such, the assessee obtained from the bank the exchange control copy of the relevant bill of entry and filed the same along with various other documents. He also executed an indemnity in favour of t .....

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missions of both the sides. It has been the contention of the appellants from the very beginning, that the MODVAT Credit has been taken by them on the strength of the specified documents, which got misplaced afterwards and for the said reason the original copy of transport documents could not be produced by them for defacement purposes. In support of their contention, that they have received the goods, they had produced before the Department photo copy of the Transporter copy of the invoice/chal .....

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s of original copy of invoice only after satisfying the Assistant Commissioner about the loss of the duplicate copy of invoice in transit. In the present matter, the specified copy of Bill of Entry and invoices have been misplaced after the receipt of the goods in the factory. Neither the receipt of the goods in the factory nor their use for the intended purpose nor the duty paid nature has been doubted by the Department. In view of these facts, the appellants are eligible to take the MODVAT Cre .....

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ings of fact have not been disputed by the appellant even before us. The only contention of the appellant department is that in the absence of triplicate copy of bill of entry, as required under Rule 57G (3) of the Rules, modvat credit was lawfully disallowed by the Assistant Commissioner. We do not agree with this contention on the facts of the present case. 10. Rule 57G(3) of the Rules provides as under: "Rule57G (3):- No credit under sub-rule (2), shall be taken by the manufacturer unles .....

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nder rule 174; (c) triplicate copy of a bill of entry; (d) a certificate issued by an Appraiser of Customs posted in foreign post office; (e) an invoice issued by a first stage dealer of excisable goods, registered under rule 174; (f) an invoice issued by a second stage dealer of excisable goods registered under rule 174 and duly authenticated by the proper officer; (g) an invoice issued by a dealer on or before the 31st day of August, 1996; (h) an invoice issued by an importer registered under .....

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