S.S.KANG, J. - (1.)HEARD both sides.
(2.)APPELLANT filed this appeal against the order in appeal passed by the Commissioner (Appeals) where by the benefit of MODVAT credit was disallowed only on the ground that invoice on the strength of which credit was taken was unauthenticated.
(3.)THE Contention of the appellants is that they received the inputs from Bharat Petroleum Corporation Limited. The goods imported and supplied to the appellants under the Bharat Petroleum Corporation Limited. The appellants availed the credit and Revenue issued a show cause notice for denial of the credit, as the invoices were unauthenticated. The contention is that as per the provisions of Rule 57G(2)(h) of the Central Excise Rules provides that in case of an invoice issued by the importer registered under the Rule 174, credit can be taken on the strength of invoices which is duly authenticated by the proper officer. The rule is amended by the Notification No. 7/99 -CE (NT) dated 09.02.99 to the effect that credit shall not be denied if all the particulars mentioned in the invoice are not mentioned therein if such documents contains details of payment of duty, description of goods, assessable value name and address of the factory or the warehouse. The Contention is that this amendment is applicable to the pending cases also. The appellants relied upon the Larger Bench decision of the Tribunal in the case of Kamakhya Steels (P) Ltd. C.C.E., reported in 2000 (121) E.L.T. 247 (Tribunal). The Central Board of Excise and Customs issued a Cir. No. 441/7/99 -CX dated 23.02.1999 whereby it has been clarified that before issuance of show cause notice wrong availment of MODVAT credit on procedural ground. The Assistant Commissioner conducted an enquiry with regard to the duty paid nature of the goods. The contention of the appellant is that the supdt. Of Central Excise jurisdiction over the appellant factory made an enquiry from the jurisdictional superintendent of Bharat Petroleum Refinery and vide letter -dated 20.04.99 confirmed that the inputs received by the appellant from Bharat Petroleum Corpn. Ltd. are duty paid. In these circumstances, the contention is that credit cannot be denied.
The contention of the Revenue is that as per the requirement of Rule 57G of the Central Excise Rules, the invoices on the strength on which the credit has been taken should be duly authenticated by the proper officer. In the present case the appellants are not disputing the fact that invoices are not authenticated, hence credit was rightly claimed. The Revenue relied upon the decision of the Tribunal in the case of Suraj Diamonds (India) Ltd. v. Commissioner of Central Excise, Jaipur, reported in 2001 (137) E.L.T 227 (Tri -Del.) where the credit was denied when it was taken on the invoices, which were not authenticated.