TaxTMI 
TaxTMI 
1999 (11) TMI 88
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....hey were required to show cause why the Modvat credit already availed by them be not reversed. 3.In the first notice the reasons for reversal of Modvat credit were that the petitioner submitted R.T.12 return but did not submit duty paying documents i.e. Bill of Entries/Invoices and abstract of R.G. 23-A Part I Register which was required to be submitted under Rule 57G (4) of the C.E. Rules 1944; The quantity of inputs which have been shown to be received in R.G.23 Part I are not talling and matching with the quantity shown to be imported under Bill of entries. In some cases inputs appears to have been received in the factory premises as the date of receipt of inputs mentioned are not talling with the date of clearance of goods from Customs House and in some cases the bill of entries were entered in R.G. 23 Part I Register on a date prior to actual receipt of the goods in the factory and in some cases the inputs are recorded in the statutory records without receipts of inputs in R.G. 23-A Part I which was required in Sub-Rule 57-G(2) Proviso 57 G-3(a) of C.E. Rules and in some cases credit on the strength of duplicate copy of Bill of Entry was availed which documents were inadmis....
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....lapses. It was also stated that during shifting of their office the file containing the Modvat documents in respect of inputs shown in Annexure-A to the show cause notice were misplaced, hence, they could not place the said documents before the Range Officer at the time of assessment, but produced photo-copy of the original documents. The department did not doubt the authenticity of the photocopies. Hence, Modvat credit due in all respect should not be denied on mere procedural lapses. 7.It appears from the record that a combined order dated 28-11-1997 was passed in respect of notices dated 1-12-1995 and 29-2-1996 and also relating to certain other notices issued to the petitioners. As regards Writ Petition No. 130 of 1999 Modvat credit to the tune of Rs. 1,05,24,441.05 paise was reversed. In Writ Petition No. 131 of 1999 the amount of reversal of Modvat credit is Rs. 3,12,600/- (sic). As regards Writ Petition No. 132 of 1999 order dated 28-11-1997 was passed by the Assistant Commissioner Central Excise and Modvat credit availed by the petitioner to the tune of Rs. 1,07,74,642/- was disallowed. 8.Aggrieved by the orders passed by the adjudicating authority, the petitioners fi....
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.... Grant of stay or refusal to stay, his discretion of the authority before whom an appeal lies and High Court should not interfere under Article 226 of the Constitution of India, in the exercise of discretion by the appellate authority. The question whether the petitioner rightly availed the Modvat credit facility or not is essentially a question of fact and can be gone into by the appellate authority at the time hearing of the appeal. The Commissioner of Appeals has decided the case merits as well as on the basis of financial hardship the petitioner however never pleaded his financial hardship even in the Writ Petition. Non-compliance of substantive requirements is not mere technical/procedural requirement. Substantive requirements are statutory and binding. I have heard Shri A.P. Mathur, learned Counsel for the petitioners in all the 3 writ petitions, Shri S.K. Misra in writ Petition No. 131 of 1999 of Sri Vikram Gulati in writ petition No. 132 of 1999 appearing for the respondents. No one has appeared on behalf of the respondents in Writ Petition No. 130 of 1999, even though earlier Shri R.C. Joshi has taken notice on behalf of the respondents. Submission of Shri A.P. Mathu....
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....ntrol) Appellate Tribunal (for short CEGAT) in support of their original submission. A look into the impugned orders would show the respondent No. 1 has discussed the prima facie merits of the case, in the impugned orders but has not at all discussed the financial hardship that may be caused to the petitioners if their waiver-cum-stay application is not allowed. Even though in the counter affidavits it is stated that the financial condition was also taken into consideration but this is not correct. Shri Gulati has submitted that no ground with regard to financial hardship was taken in the application or in the Writ Petition. This is also not correct. Para 4 of the waiver-cum-stay application specifically says that "the appellant has a very good case on merits. If the stay as prayed for is not granted it would cause grave and irreparable injury and hardship to the appellant as the appellant is facing great financial difficulty." It is then argued by Mr. Gulati that the appellant-company is having business worth billion of dollars and no financial hardship shall be caused if it is directed to deposit the amount as aforesaid. Controverting the allegations Mr. Mathur has argued refe....