IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.E.A. No.12 of 2008 DATE OF DECISION: JULY 04, 2008 Commissioner of Central Excise, Delhi-III, Gurgaon .....APPELLANT Versus M/s Northern Minerals Limited, Gurgaon ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE RAKESH KUMAR GARG --- Present: Mr. Kamal Sehgal, Advocate, for the appellant. .. SATISH KUMAR MITTAL, J. Commissioner of Central Excise, Delhi-III has filed this appeal under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as `the Act') against the order dated 9.3.2007 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as `the Tribunal'), whereby the appeal filed by the appellant against the order dated 6.1.2005 passed by the Commissioner (Appeals) Central Excise, Gurgaon, has been dismissed. In this appeal, the assessee, i.e., M/s Northern Minerals Limited, Daulatbad Road, Gurgaon was engaged in the manufacture of insecticides, pesticide, fungicides and herbicides, falling under Chapter sub-heading No.3808.10 & 3808.90 of the schedule to the Central Excise C.E.A. No.12 of 2008 -2- Tariff Act, 1985 and were availing of Modvat facility under Rule 57A of the Central Excise Rules, 1944 (hereinafter referred to as `the Rules'). The adjudicating authority (Assistant Commissioner, Central Excise Division-I, Gurgaon) after issuing a show cause notice to the assessee proposing to deny Modvat credit of Rs.10,64,444/- alleging that the same was taken against invalid documents, vide its order dated 29.10.1997 held that the Modvat credit of Rs.9,56,054/- was admissible and that of Rs.1,07,390/- was not admissible. Out of the amount of Rs.1,07,390/-, the Modvat credit amounting to Rs.1,00,883/- was disallowed on two invoices, i.e., invoice No.17 dated 7.4.1994 for Rs.2099/- holding that the credit was availed against original copy of the invoice instead of its duplicate and against invoice No.32933 dated 31.3.1994 for Rs.98,784/- on the ground that prior to 1.4.1994 invoice issued under Rule 52A of the Rules was not a prescribed document for the purpose of availment of Modvat credit. Against the aforesaid order of the adjudicating authority, the assessee filed an appeal before the Commissioner, Central Excise (Appeals), New Delhi in respect of the Modvat credit of Rs.1,00,883/- disallowed to it by the adjudicating authority. Before the adjudicating authority, the assessee did not contest the denial of Modvat credit in respect of invoice No.17 dated 17.4.1994, involving Modvat amount of Rs.2909/-. However, the assessee had contested the denial of Rs.98,784/- against invoice No.32933 dated 31.3.1994. It was submitted on behalf of the assessee that the said invoice was issued by M/s National Organic Chemical Industries Limited from their warehouse in Shakur Basti, Delhi and that document was a valid document under the Rules. While rejecting C.E.A. No.12 of 2008 -3- this contention of the assessee, Commissioner Central Excise (Appeals), Delhi dismissed the appeal of the assessee vide order dated 15.4.1999. Feeling aggrieved against the aforesaid order, the assessee preferred an appeal before the Tribunal. The Tribunal vide order dated 23.6.2006 remanded the matter to the jurisdictional Commissioner of Central Excise (Appeals). After remand of the case, the Commissioner of Central Excise (Appeals) vide its order dated 6.1.2005 allowed the appeal of the assessee while observing as under:- “.....The disallowance on Modvat credit to the extent of Rs.2,099/- has not been contested by the Ld. counsel for the appellant at the time of personal hearing. In view of the same, I uphold the impugned order to the extent of denial of the above credit. As regards remaining amount of modvat credit of Rs.98,784/-, I find the same admissible to the appellant in terms of Notfn.No.15/94 (NT) dated 30th March, 1994 read with Circular No.76/76/94-CX dated 8.11.2004 issued by the Central Board of Excise & Customs. In the above Circular, the invoice/documents issued by a manufacturer from his depot has been recognized as valid documents for the purposes of allowing modvat credit. In view of the same, the appeal of the appellant in respect of an amount of Rs.98,784/- is allowed.” Aggrieved against the aforesaid order, the revenue preferred an appeal before the Tribunal which has been dismissed by the Tribunal. The Tribunal has dismissed the appeal while confirming the order of the Commissioner (Appeals). Against the said order, the present appeal has been filed in which the following substantial questions of law has been raised for consideration of this Court:- “Whether Cenvat Credit is admissible on invoice issued by a C.E.A. No.12 of 2008 -4- manufacturer from their warehouse on 31.03.1994 under Notification No.15/94 CE (NT) issued on 30.03.1994 read with Circular No.76/76/94-CX dated 8.11.94 in respect of invoice system which was to be introduced w.e.f. 1.04.1994 vide Notfn.No.04/94-CE (NT) dated 1.03.1994?” We have heard the counsel for the appellant. During the course of hearing, learned counsel for the appellant has not disputed the fact that the invoices in question were issued by M/s National Organic Chemical Industries Limited in favour of the assessee indicating the rate of duty, gate pass number and other relevant information. The genuineness of the said document and transaction has also not been disputed. There is also no dispute with regard to the payment of duty, nature of inputs and utilization in the finished products. Learned counsel for the appellant only argued that the document against which Modvat credit could be claimed, had been prescribed in the Proviso to sub- rule (2) of Rule 57G of the Rules and the invoices in question were not in accordance with that Rule, therefore, the Modvat credit could not have been granted against such invoice, which, according to the learned counsel, was not a valid document. After hearing the learned counsel for the appellant and going through the impugned order, we do not find any force in the contention raised by the learned counsel for the appellant. In the order dated 6.1.2005, Commissioner, Central Excise (Appeals) has categorically observed that in terms of the Notification dated 30th March, 1994 read with Circular No.76/76/94-CX dated 8.11.1994 issued by the Central Board of Excise & Customs, the invoice in question was a valid document to be taken into consideration for the purposes of allowing Modvat credit. In that Circular, C.E.A. No.12 of 2008 -5- the invoice/documents issued by a manufacturer from his depot has been recognized as valid documents for the purpose of Modvat credit. In the present case, the genuineness of the invoice in question and transaction has not been disputed. The factum of Notification as well as Circular dated 8.11.1994 have also not been controverted. Further, it is not the case of the revenue that the invoice in question was a forged or bogus document. We also do not find any force in the contention of the learned counsel for the appellant that in the present case the Cenvat Credit is not admissible on invoice issued by the manufacturer from their warehouse on 31.03.1994 by giving the benefit of Notification No.15/94 CE (NT) issued on 30.03.1994 read with Circular dated 8.11.1994 because the said Notification was made effective w.e.f. 1.04.1994. In our view, the said Notification is clarificatory and procedural in nature, therefore, the benefit of the same cannot be denied to the assessee merely on the ground that the said Notification was made effective w.e.f. 1.04.1994, particularly when there is no material on the record that the invoice pertaining to which the Cenvat Credit was availed, was not a forged and bogus document. Therefore, in these facts, in our opinion, the Tribunal has rightly upheld the order of the Commissioner (Appeals) and we do not find any illegality in the said order. No question of law arises for our consideration. Dismissed. (SATISH KUMAR MITTAL) JUDGE July 04, 2008 (RAKESH KUMAR GARG) vkg JUDGE