1998(05)LCX0082

IN THE CEGAT, NORTHERN BENCH, NEW DELHI

Shri V.K. Agarwal, Member (T)
NEERA ENTERPRISES
Versus
COLLECTOR OF CENTRAL EXCISE, CHANDIGARH.
Final Order Nos. A/502/98-NB and Stay Order No. S/171/98-NB, dated 15-5-1998 in Appeal No.
E/Stay/359/98-NB in E/2384/97-NB
Summary of case: @

When the weight of input in receipt is not substantially different from the weight of input actually
received credit is available. Merely 2% difference in weight is not significant to deny credit and may be
on account of different scales. Credit is limited to the actual amount of duty paid by the original
manufacturer when there is difference in weight of input issued from the input received. (Para. 5)

Reference to be made to Assistance Commissioner for verification of the factual position. Credit denied
on the basis of missing date of Entry Number in PLA/RG 23A. Appellants directed to submit certificate
from original manufacturers about payment of duty. (Para. 5)

Credit not deniable as long as the duty payment in invoice is not disputed. Time of removal of goods in
the invoice not mentioned inadvertently. The appeal partly allowed. (Para. 5)
>
REPRESENTEDBY:Ms.GinniBedi,Advocate,fortheAppellant.
Shri A.M. Tilak, JDR, for the Respondent.
[Order]. - Appellants filed this appeal against the Order-in-Appeal dated 31-7-1997 passed by the
Collector (Appeals) disallowing the Modvat credit on different grounds.
2. The Stay Application today is posted for waiver of predeposit and stay of the recovery of the
amount. However, as the point involved is short the Appeal itself is taken up for decision with the
consent of both parties. In view of this predeposit is waived and the stay is granted.
3. Arguing on behalf of the Appellants the ld. Counsel submits that in respect of the invoice Sl. Nos. 3,
6 and 8 of the annexure to the show cause notice dated 30-12-1994, the Modvat credit was disallowed as
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the date and time of removal of the goods from the manufacturers factory were missing from the
invoice. She submits that the initial manufacturer in all these case is M/s. SAIL and in respect of some
of the invoices the date of invoice is mentioned, only the time of removal from the plant is not there and
for that reason Modvat credit should not be denied. She further mentioned that the depot of SAIL from
where the goods were purchased had indicated both date and time and removal of the goods and the
second dealer from whom the appellants had purchased the goods had indicated time and date of
removal of these goods in the invoice. She also relied upon the Chandigarh Collectorate Trade Notice
No. 62/C.E./95, dated 28-11-1995 in which it was mentioned that if there are any particulars missing in
the invoice issued by SAIL the action should be initiated against M/s. SAIL. In respect of Sl. No. 5 of
the Annexure to the show cause notice she submits that there was only 2% difference in the weight of
the C.R. Sheets which may be on account of weighing the C.R. Sheets on different weighing machines.
She, however, concedes that the credit amount was to be restricted to the original amount of duty paid
by the manufacturer. Similar was the contention in respect of the Sl. No. 7 of the show cause notice. She
also mentioned that in invoice No. E/1760 as well as others, in information furnished by the dealer, the
total amount of duty involved has been mentioned. On pointing out, she conceded that P.L.A.
particulars/RG-A debit particulars had not been mentioned in the invoice. Regarding Sl. No. 9 of the
annexure to the show cause notice, she submitted that here duty amount was mentioned in the
manufacturers invoice and accordingly the Modvat Credit cannot be denied.
4. Countering the arguments on behalf of the Revenue the Ld. D.R. submits that as the goods are C.R.
Sheets there are no identification marks on the goods. It is only from referring to the weight that the
goods may be related to the particular duty paying documents that is invoice. As the weight is different
these are not valid duty paying documents for the purpose of availing the Modvat credit. He also
submits that Trade Notice relied upon was issued on 28-11-1995 whereas the inputs were received much
before that date and as such trade notice cannot have retrospective effect.
5. I have heard the submissions made by both the sides. It is not disputed by the department that the
goods were initially removed from the Rourkela Steel Plant of the SAIL. If the time of the issuing of
invoice was not inadvertently mentioned by Rourkela Plant the benefit of Modvat Credit cannot be
denied to the appellants so long as the duty payment in their invoice is not disputed. It is also further
observed that the manufacturer i.e. Rourkela Steel Plant did mention the date of removal of the inputs
from their steel plant. Accordingly, Modvat credit cannot be denied to the appellants on this count. In
respect of the other invoices where the weight of the inputs while removing from the depot of SAIL is
different from the weight of inputs actually received, there is substance in the submissions of the ld.
Counsel that the difference is not substantial and it may be on account of weighing on different scales.
Again this could not be a ground for disallowing the Modvat Credit when the duty paid nature of the
goods and its use are not in dispute. In view of this Modvat credit will be admissible to the appellants in
respect of invoice at Sl. No. 5 of the show cause notice subject to the condition that it will be limited to
the actual amount of duty paid by the original manufacturer. Similarly, in respect of Sl. No. 9 it has been
shown that the weight of the C.R. Coils is more than the weight mentioned by the depot while issuing
invoice and in view of the discussion above Modvat Credit is admissible. As far as Modvat in respect of
Sl. No. 7 of the annexure to the show cause notice pertaining to the Invoice No. E/1760, dated 28-9-
1994 is concerned it is observed that the invoices were issued by SAIL and the duty paid at the time of
removing the goods is mentioned. Only particulars missing in the invoice is date of entry No. In
P.L.A./R.G.-23-A. This is a factual position which should be checked up by the Assistant Commissioner
by making reference to the A.C. in charge of the Rourkela Steel Plant and on that basis he should take a
decision. The Appellants may also submit the certificate from the original manufacturers about the
payment of duty on the goods. With these directions the appeal is disposed of.
Equivalent 1998 (104) ELT 382 (Tribunal)
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