2003 (12) TMI 179 - AT - Central Excise

Appellate court remands case, grants appellants opportunity to present evidence. Original denial overturned.

The appellate court allowed the appeal by remanding the case, granting the appellants an opportunity to present their arguments and evidence. The original ... Cenvat/Modvat - Loss of invoice Issues: Denial of Modvat credit without show cause notice and hearing, loss of original and duplicate copies of invoices issued under Rule 100E, applicability of Rule 57G(6) in cases of loss of documents.Analysis:1. The appellants were denied Modvat credit without a show cause notice or hearing, as per the Assistant Commissioner's letter. The Commissioner (Appeals) upheld this decision, mentioning a prescribed procedure for loss of original documents. However, the appellants claimed that the impugned goods were transported by a coastal vessel from a 100% E.O.U., and both original and duplicate copies of the invoices were lost. They argued that the prescribed procedure under Rule 57G(6) did not cover loss of invoices issued under Rule 100E. The appellants also cited a relevant decision from the Calcutta Bench regarding a similar issue.2. After reviewing the case records, it was found that the loss of documents was not promptly intimated to the department upon receipt of the goods. The appellants explained the delay by stating they were trying to obtain copies from the shipping company. They only informed the department after six months and did not utilize the credit pending permission. The procedure under Rule 57G(6) for loss of duplicate invoices pertained to Rule 52A, not Rule 100E, although both types were prescribed documents under Rule 57G(3)(a).3. Recognizing that similar situations involving loss of invoices under Rule 100E could occur, it was decided that the procedure under Rule 57G(6) could be applied mutatis mutandis in such cases. As the appellants provided a custom attested copy of the triplicate invoice, the original authority was instructed to verify payment of duty and receipt of goods from the supplier's factory, which was a 100% E.O.U. under Customs control. The impugned orders were set aside, and the matter was remanded for necessary verification and consideration of the Modvat credit claim. The appellants were granted a reasonable opportunity for a hearing before a fresh speaking order was passed.4. The appeal was allowed by way of remand, providing the appellants with a chance to present their case before a new decision was made.