TaxTMI 
TaxTMI 
1995 (6) TMI 122
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise Rules, 1944 read with Section 11A of Central Excises & Salt Act, 1944, besides a penalty of Rs. 5,000 u/s 173Q(1) of Central Excise Rules. 2. Shri Sampath, the learned Counsel for the appellant submitted that the appellant is engaged in the manufacture of ACSR and AA Conductors for which aluminium wire rods are used as inputs. The appellant had opted for Modvat credit and had filed the necessary declaration and the inputs in question had been properly declared in the Modvat declaration. The appellant placed order through their agent with M/s. Anu Cables, Ajmer for supply of aluminium wires and also paid for the same. The consignment was received on 19-11-1986 and the supplier also sent gate pass No. 23, dated 25-10-1986. Subsequ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s No. 23, dated 25-10-1986 no goods were cleared and moved and the goods in question were cleared under gate pass No. 1, dated 16-11-1986 and by mistake a wrong gate pass was sent. It was further submitted that the supplier also paid the duty for the second time on 7-5-1988 to prove their bona fides and good faith. The learned Counsel therefore prayed for setting aside the impugned order. 3. Shri Subramanian, the learned DR while not disputing the fact that the inputs in question had suffered duty and is relatable to gate pass No. 1, dated 16-11-1986 submitted that since initially when the goods were received on 19-11-1986 without a valid gate pass, the credit taken was not in order. 4. We have considered the submissions mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s that when the consignment was received in the appellants' factory the same was covered by gate pass No. 1, dated 16-11-1986. The appellants, however, before the learned lower authority have pleaded that the consignment in question had in fact been received under the cover of Gate Pass No. 23, dated 25-10-1986. The admitted position is that no goods had been despatched by the suppliers, namely, M/s. Anu Cables to the appellant when Gate Pass No. 23, dated 25-10-1986 was sent and no duty has also been debited in respect of the said gate pass. The question, therefore, arises whether the goods had been despatched under Gate Pass No. 1, dated 16-11-1986 and any duty had been paid in respect of the same. We find that in the paper book filed whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cannot be allowed as there is no verifiable evidence that the goods were received or covered by the appellants under Gate Pass No. 1, dated 16-11-1986 as held by Member (Technical).  Sd/-  Sd/- (S. Kalyanam) (V.P. Gulati) Dated : 9-11-1994 Vice President Member (T) 7. [Order per : T.P. Nambiar, Member (J), agreeing with Member (T)]. - The point of difference between learned Member (J) (Vice President) and learned Member (T) is referred to me by the President for resolving the difference of opinion. The point of difference is to the effect that : Whether in the facts and circumstances of the case the appellants should be allowed the benefit of Modvat Credit in re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Anu Cables in their communication dated 7-5-1988 stated that there was some clerical error by the old management and that was the reason gate pass was wrongly issued. According to them under gate pass No. 23 no goods were cleared and removed and the goods in question were cleared under gate pass No. 1, dated 16-11-1986. 9.  The learned Vice President has held that by mistake the supplier sent a wrong gate pass No. 23, dated 25-10-1986 instead of gate pass No. 1, dated 16-11-1986 which is relatable to the inputs in question and therefore mere sending of a wrong gate pass when the inputs had admittedly suffered duty and covered by a valid gate pass may not be a ground to direct recovery of the credit. On the contrary, the learned Mem....