TMI Blog2005 (4) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has established that the inputs received under the bills of entry were duty paid and, therefore, the authorities below were not justified in denying the credit of duty to the appellant. The two decisions relied upon by the Tribunal do not support the case of the revenue. In the case of Balmer Lawrie Co.[ 2000 (1) TMI 74 - CEGAT, NEW DELHI] , the issue was not relating to the endorsement on the bills of entry and, therefore, the said decision is distinguishable on facts. Similarly, the decision of the Tribunal in the case of Tata Iron Steel Co. Ltd.[ 2000 (11) TMI 248 - CEGAT, KOLKATA] is also distinguishable on facts as the said decision is based on erroneous concession made by the Counsel for the appellant therein, that in the case of Balmer Lawrie Co. it is held that the Modvat credit is not available on the basis of endorsed copies of bills of entry. Thus, we are of the opinion that in the facts of the present case, the Tribunal was in error in holding that the credit of duty taken by the appellant was in contravention of Rule 57G. Accordingly, the question raised by the appellant is answered in the negative i.e. in favour of the appellant and against the Revenue. Appeal is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Central Excise Act and Rules made thereunder. On adjudication, the Commissioner of Customs Central Excise, Panaji, Goa by his Order-in-Original dated 26-9-1997 confirmed the demand for Rs. 27,83,198/- and also levied penalty of Rs. 7,00,000/- under Rule 173Q and penalty of Rs. 1,00,000/- under Rule 173G of the Central Excise Rules. Being aggrieved by the aforesaid order, the appellant filed an appeal before the CESTAT and by its order dated 11-8-2004, the CESTAT confirmed the duty demand, but reduced the penalty from Rs. 7,00,000/- to Rs. 2,00,000/- levied under Section 173Q and set aside the penalty of Rs. 1,00,000/- levied under Rule 173G of the Central Excise Rules, 1944. Hence this appeal. 4. Mr. M.V. Jaykar, learned Advocate appearing on behalf of the appellant submitted that both the authorities below were in error in holding that the appellant had taken credit of duty in contravention of Central Excise Rules. He submitted that it is not in dispute that the appellant had taken on loan 3314.159 M.T. of Shredded scrap imported by M/s. Essar Gujarat Ltd. on which appropriate amount of countervailing duty was paid. It is also not in dispute that M/s. Essar Gujarat Ltd. hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill of entry and, therefore, the said decision is also distinguishable on facts. Relying upon the decision of the Apex Court in the case of Thermax Private Ltd. v. Collector of Customs [1992 (61) E.L.T. 352 (S.C.)], Mr. Jaykar submitted that in view of the substantial compliance of the provisions of the Central Excise Act and the Rules made thereunder, it must be held that the appellant is entitled to the credit of duty and accordingly the question be answered in favour of the appellant. 7. Mr. S.S. Pakale, learned Counsel appearing on behalf of the respondents, on the other hand supported the orders passed by the authorities below. He submitted that credit of duty under Rule 57G of the Central Excise Rules based on the bills of entry can be availed only if the bills of entry are in the name of the claimant or are endorsed in the name of the claimant. If these conditions are not fulfilled, the credit of duty under Rule 57G of the Central Excise Rules cannot be availed. Mr. Pakale submitted that in the present case, admittedly, the bills of entry furnished by the appellant are neither in the name of the appellant nor the same were endorsed in the name of the appellant. In these ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions as the Central Government may direct, without production of documents evidencing the payment of duty : Provided also that the manufacturer shall take all reasonable steps to ensure that the inputs acquired by him are goods on which the appropriate duty as indicated in the documents accompanying the goods, has been paid. (2A) ........ ... (3) ........... (4) ........... (5) ........... (emphasis supplied) 9. Perusal of Rule 57G of the Central Excise Rules, 1944, clearly shows that the credit of duty can be taken on inputs received by establishing that the duty has been paid on the said inputs on the basis of documents such as invoice, AR-1, Bill of Entry, etc. In the present case, it is not in dispute that the appellant had received 3314.159 M.T. of imported shredded steel scrap from M/s. Essar Gujarat Ltd. on which countervailing duty has been paid by M/s. Essar Gujarat Ltd. It is also not in dispute that M/s. Essar Gujarat Ltd. has not taken credit of the duty paid on 3314.159 M.T. of shredded steel scrap which is given on loan to the appellant. It is also not in dispute that the appellant has used the said shredded steel scrap taken on loan from M/s. Essar Gujarat Ltd. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on the said goods has not been taken. In the facts of the present case, the evidence on record i.e. the bills of entry together with the certificates issued by excise authorities at Surat and Goa, clearly show that the goods imported and cleared under the bills of entry on payment of duty were received and utilised by the appellant as inputs in its factory and that the importer has not utilised the credit of duty paid on the said goods. Thus, the appellant has established that the inputs received under the bills of entry were duty paid and, therefore, the authorities below were not justified in denying the credit of duty to the appellant. The two decisions relied upon by the Tribunal do not support the case of the revenue. In the case of Balmer Lawrie Co. (supra), the issue was not relating to the endorsement on the bills of entry and, therefore, the said decision is distinguishable on facts. Similarly, the decision of the Tribunal in the case of Tata Iron Steel Co. Ltd. (supra) is also distinguishable on facts as the said decision is based on erroneous concession made by the Counsel for the appellant therein, that in the case of Balmer Lawrie Co. it is held that the Modvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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