IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Ex. Ref. No. 9 of 2000 Reserved on: July 11, 2008 Date of Decision : August 20, 2008 Commissioner, Central Excise …Petitioner Versus: M/s. Spectra Electronics (P) Ltd. …Respondent. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the petitioner Mr. Sandeep Sharma, Assistant Solicitor General of India. For the respondent: Mr. Ramakant Sharma, Advocate. Sanjay Karol, Judge. The present excise reference was admitted on the following substantial question of law:- “Whether requirement of Printing Serial No. on invoice as provided under Rule 52A(6) of the Central Excise Rules, 1944 is a statutory requirement for availing benefit under Modvat Scheme?” M/s. Spectra Electronics (P) Ltd., Parwanoo (hereinafter referred to as ‘the assessee’) was engaged in the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 manufacture of Monitors for Computers falling under Chapter Heading No. 8471.00 of the Central Excise Tariff Act, 1985 (hereinafter referred to as ‘the Act’). They are holding Central Excise Registration No. 130/Spectra/P/84/94 and are availing the facility under Rule 57A of the Central Excise Rules, 1944 (hereinafter referred to as ‘the Rules’). During the course of checking of monthly return for the month of March, 1996, it was so observed that the assessee had availed Modvat credit of Rs.73,825/- vide Entry No.601 dated 30.3.1996 in RG 23A Pt.II against invoice No.8276, dated 15.3.1996, serial number on which was hand written. For the purpose of availing Modvat credit, the serial number on the invoice ought to have been pre-printed, therefore, for contravention of the provisions of Rules 52A and 57A, the assessee was called upon to show cause as to why the aforesaid Modvat credit be not disallowed and amount recovered in accordance with Rule 57 and Section 11A of the Act. The matter was adjudicated upon by the Custom and Central Excise Collectorate, Chandigarh and the Deputy Commissioner vide order No. V(84)CE/DC/AA&R/407/96/2970 and Order-in-Original No.30/CE/DC/97, dated 26.2.1997, ordered recovery of Rs.73,825/- in addition to the penalty of Rs.10,000/- and interest @20% in the event of default of payment within three months from the date of order. 3 The aforesaid order was accepted vide order dated 11.1.1999 passed by the Commissioner (Appeals) C.E. & Customs, Chandigarh. The Revenue assailed the same vide Appeal No. E/798/99-NB, which was dismissed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi vide order dated 23.2.2000. The benefit was given to the assessee on the ground that the substantive benefit could not be denied only for the reason that the particulars required to be printed, in terms of Notification in question had been written in hand as the same met the requirement of law. The findings of the Tribunal are reproduced as under:- “I have carefully considered the matter. I find that the ratio of the decision referred to by the departmental side is not applicable to the facts of this case. In a series of cases, the Tribunal has taken the view that non-printing of serial number on the invoice or writing serial number in hand is not a serious offence which cannot be cured and lapse is merely a technical lapse. If modvat credit is otherwise admissible, it cannot be denied on the ground that serial number on invoice is written in hand. In view of the consistent view of the Tribunal, I do not find any infirmity in the impugned order and in the result, the appeal filed by the department is hereby dismissed.” We have heard learned counsel for the parties and also perused the record. 4 Rule 52A(6) read with Notification dated 16.11.1995 issued under Rules 52A and 57GG requires the Dealer to maintain an invoice book in a bound form. The required copies of the invoices should be cut only at the time of issue of the invoice or at the time of submission to the Excise Authorities. The Notification mandates that the details which are required to be printed on the invoice in terms of Rules 52A & 57GG read with Notification No. 23/95-CE(NT) dated 30.3.1995 should be printed. It specifically provides that “rubber stamping of these details is not permitted” and any deviation from the prescribed procedure shall be construed as violation of the Rules. For the purpose of proper appreciation, the Trade Notice No.58-CE/95, dated 16.11.1995 and notifications referred to therein are reproduced as under:- “Attention of the trade and all other concerned is invited to invoices issued under Rule 52A and Rule 57GG of Central Excise Rules, 1944. 2. The requirement of these rules is that the manufacture and Registered Dealer, as the case may be, shall maintain the invoice book. The invoice book should be in a bound form. The required copies of the invoices should be taken cut only at the time of issue of the invoice or at the time of submission to the Excise Authorities. The quadruplicate copy of the invoice should always be retained in the invoice book. 3. In respect of invoices generated through Computer, procedure prescribed under Trade Notice No.83-CE/94(Misc-45) dated 29.7.94 should be followed. 5 4. The details which are required to be printed on the invoice in terms of Rule 52A and Rule 57GG read with Notfn. No. 23/95-CE(N.T.) dated 30.5.95 should be printed. Rubber stamping of these details is not permitted. 5. Any deviation from the prescribed procedure will be construed as violation of Rule 52A or Rule 57GG as the case may be.” Rule 57GG of the Rules provides that the invoice to be issued by every person under Rule 57G shall contain the details as prescribed by the Central Board of Excise and Customs or as the case may be by the Collector of Central Excise. In accordance with Rule 57 GG (4) the Notification in question has been issued, which is reproduced as under:- “Notification:23/95-CE(NT) dated 30-May- 1995 Invoice for Modvat – Particulars to be incorporated In excise of the powers conferred by sub-rule (4) of rule 57GG of the Central Excise Rules, 1944 the Central Board of Excise and Customs prescribes the following details which an invoice will contain namely:- (i) Particulars mentioned in the Annexure; (ii) Colours of the invoice shall be white, pink, yellow and green, respectively, for original, duplicate, triplicate and quadruplicate copies thereof; (iii)First and last copy of the invoice book shall be pre-authenticated by the jurisdictional Range Superintendent of the Central Excise. 6 Provided that the invoice generated on computer shall not be pre-authenticated; (iv) the invoice shall be pre-printed, containing name, address and Central Excise registration number of the registered person issuing the invoice, name of the Range/Division/ Collectorate in whose jurisdiction such person is registered, and the Income-tax and Sales- tax registration number. 2. This notification shall come into force on the 1st day of August, 1995. ANNEXURE-II PROFORMA FOR ISSUE OF INVOICE UNDER RULE 57G OR 57T INVOICE NO. 1. (a) Name and address of Registered person issuing the invoice : (b)(i) central Excise Registration No. : (ii) Sales Tax Registration No. : (iii) Permanent Income Tax No. and GIR No. if any : (c)(i) Full postal address of Range : (ii) Name of Division and Collectorate : (d) Description of goods : (e) Identification marks and number : (f) Quantity (Nos./Weight/Litre/Metre) : (g) Value in Rupees (in words and figures) : (h)(i) Rate of duty : (ii) Amount of duty per unit : (iii) Amount of duty involved in the quantity at (serial No.1(f) in words and figures : 7 (i) Date and time of issue of invoice : (j) Date and time of removal of goods : (k) Mode of transport and vehicle No. : 2. (a)(i) Name and address of the Consignee : (ii) Central Excise Registration No. : (iii) Name of Range/Division/ Collectorate : 3. Name and address of the buyer, if he is not consignee : 4. (a)(i) Name and address of the supplier of goods if he is not manufacturer/ importer : (ii) Central Excise Registration No. : (iii) Full postal address of Range : (b) Invoice No. : (c) Entry and page No. in RG-23D corresponding to invoice at (b) above : 5. (a) (i) Name and address of manufacturer/ importer, if he is not the supplier. : (ii) Central Excise Registration No. : (iii) Full postal address of Range : (iv) Name of Division and Collectorate : (b)Invoice No./Bill of Entry No. : (c) Description of goods : (d) Identification marks and numbers : (e) Quantity (Nos./weight/Litre/Metre : (f) Assessable value in Rupees (in words and figures) : (g)(i) Rate of duty : (ii) Amount of duty per unit : 8 (iii) Amount of duty paid (both in words and figures) Note: The particulars mentioned in Sl.No.1(e), (j), 2(k), if not known at the time of issue of invoice may be filled at the time of dispatch of the goods from the godown. (Notification No.23/05-C.E.(N.T.),dated 30.5.1995)” The trade notice dated 16.11.95 contained a negative covenant that even the rubber stamp is not allowed. The entire information is to be pre-printed. Rule 57GG also provides that each foil of invoice book shall be authenticated by the owner or the working partner/Managing Director/ Company Secretary before being brought into use by the registered person and before that is done serial number of the invoice shall be intimated to the Assistant Collector of Central Excise under due acknowledgement receipt. Modvat Credit under Rule 57G and Rule 57GG can be availed only on compliance of the relevant provisions of the Rules and Notifications issued thereunder. From the perusal of Notification in question, it is evident that invoice requires various particulars to be furnished and at least four such particulars are required to be pre-printed i.e. (i) name and address of the registered person (ii) Central Excise Registration No. of the person issuing the invoice; (iii) name of the Range/ Division/ Collectorate in whose jurisdiction such person is registered and (iv) income tax and Sales tax registration 9 number. All these particulars are required to be pre-printed on the invoice. The notification even prescribes the colours of the invoices. It is very specific and has a meaning and purpose behind it. The Notification appears to have been issued only to curb the practice of taking credit both on the original and duplicate copy of the invoice and by resorting to similar double credits against single consignment by falsification of documents by various methods. The Government was being defrauded and measure was taken by the Revenue only to detect such wrong credits and take appropriate action against the erring assessees and concerned persons. This is evident from Circular No.68/68/94-CX dated 24.10.1994 which has been brought to our notice by Ms. Radhika Gautam, Advocate, who had assisted the Court on our asking. As per Concise Oxford English Dictionary, Indian Edition, 11th Edition, the word “preprint” means as under: “pre-print: print in advance. a printed document issued before full publication.” The requirement of the Statute is clear and unambiguous and, therefore, such of those particulars which were required to be pre-printed could not have been written by hand in order to avail the credit as stipulated under rule 57G of the Rules as compliance of Rule 52(A) and the relevant Notification and Trade Notice was necessary. 10 Mr. Sharma, learned Assistant Solicitor General of India, has drawn our attention to a decision of the Apex Court in Indian Aluminium Company Limited vs. Thane Municipal Corporation, 1992 Supp (1) SCC 480, to press the point that even the procedural requirements of law are required to be fulfilled being mandatory in nature. Undoubtedly the requirement of the language is clear and unambiguous. The provisions of Statute and the Notification, keeping in view the object and the purpose, had to be fully complied with in letter and spirit. The requirements are mandatory and are not procedural as is sought to be argued on behalf of the assessee. The Legislative intent, the object and purpose is to check the defrauding of the Government by the assessees resorting to similar double credits against single consignment by falsification of documents by various methods. The legislature only requires some of the particulars to be pre- printed, which in any event are within the prior knowledge of and pertains to the person issuing the invoice. Therefore, there is no justification for not complying with the same. The requirement of the law is that invoices were to be pre-printed /numbered and not hand written. The Legislative intent is evident from every word used in the Statute. The same has to be complied with. If the view taken by the Tribunal is accepted it would render the Statute redundant. Therefore, on the 11 principle of Golden Rule of Interpretation, the view taken by the Tribunal is unacceptable. Learned counsel for the assessee has referred to and replied upon a decision rendered by the Apex Court in Shree Hari Chemicals Export Ltd. vs. Union of India and another, (2006) 1 SCC 396 to contend that wrong mentioning of the provision would not render the claim of the assessee ineligible. According to him, the assessee is claiming benefit under Rule 57G and 57GG of the Rules. The decision relied upon is not relevant to the issue in question. In order to avail modvat credit under Rule 57G compliance of statutory provisions of Rules 52A and 57GG are absolutely necessary. The submission, therefore, has no force. He has also referred to a decision delivered by the High Court of Judicature for Rajasthan at Jodhpur, in J.K.Industries Ltd. vs. Union of India, 2008(223) E.L.T. 372 (Raj.), to contend that the assessee cannot be faulted for the lapses committed by the dealer and on that ground the credit cannot be disallowed. We are in respectful disagreement with the view taken by the Court in J.K.Industries Ltd. (supra) as the Apex Court in Shree Hari Chemicals Export Ltd. (supra), has clearly held that even procedural requirements need to be strictly complied with before availing credit facilities. In the present case, there is a negative covenant which makes the requirement to be mandatory in nature. 12 For the aforesaid discussion, we are of the view that the Tribunal and the Authority below were not correct in reversing the view taken by the Assistant Collector. The Tribunal was not right in allowing the Modvat Credit on the strength of the invoices which did not specify the provisions/criteria laid down under Rules 52A and 57GG of the Rules and also the Notification dated 30.3.1995 and Trade notice dated 16.11.1995. The question of law is answered accordingly. The orders dated 11.1.1999 passed by Commissioner (Appeals) Central Excise & Customs, Chandigarh and 23.2.2000 passed by Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, are set aside. The reference is answered accordingly. ( R. B. Misra ), Judge. ( Sanjay Karol ), Judge. August 20, 2008. (rana)