1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 36 OF 2004 The Commissioner of Central Excise and Customs. ... Appellant. V/s. M/s.NRC Limited. ... Respondent. P.S.Jetly with J.B.Mishra for the appellant. Prakash Shah i/b. PDS Legal for the respondent. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED : 12th November 2009. P.C. : Heard learned counsel for the appellant- revenue and learned counsel for the respondent. Perused appeal. 2. The appeal has been admitted vide order dated 30th November, 2005 on the following substantial questions of law: 1. Whether Refron Gases can be treated as Capital goods in terms of Rule 57-Q of Central Excise Rules, 1944; as in the case of IPCL, the CESTAT has allowed the credit on the gas as inputs whereas in the instant case the assessee has claimed the credit under Rule 57- Q of Central Excise Rules, 1944? 2 2. Whether the registration of dealers issuing invoices for claiming Modvat Credit is a mandatory requirement under rule 57 GG read with rule 174 of Central Excise Rules, 1994? 3. Whether law laid down by the Tribunal in case of M/s.Century Lamingting Co. Ltd. v. CCE Meerut [2000 (116) ELT 491 (Tri)] is a good law in view of contrary view is taken by the larger bench in case of Balmer Lawrie & Co. Ltd. v. Commissioner of C.Ex. Kanpur reported in 2000 (116) ELT 364 (Tribunal)? 3. So far as first question is concerned, it revolves around interpretation of rules 57-Q and 57-A of Central Excise Rules, 1944 ( Rules for short) in the matter of allowing of credit on capital goods. Learned counsel for the appellant- revenue submits that allowability of credit ought to be under rule 57-A and not under rule 57-Q. While reacting to this submission, learned counsel for the respondent submits that the Punjab and Haryana High Court has held that it is allowable under rule 57-A. In his submission, it is immaterial whether allowability is under rule 57-Q or 57-A of the Rules, since it makes no difference in ultimate analysis so far as revenue impact is concerned. The issue is, thus, academic. In the light of the rival submissions, it is not that the respondent would not be entitled to the benefits received. Reliance is placed on the judgment of the Supreme Court in the case of Shree Hari Chemicals Export Ltd. v. Union of India, 2006 (193) ELT 257 (SC); 3 wherein it is held that reliance on the wrong rule cannot take away the benefit of the assessee. In this view of the matter, so far as first question is concerned, it needs no adjudication it being an academic question. 4. So far as second question is concerned, it revolves around necessity of registration of the dealer issuing invoices for claiming Modvat credit under rule 57GG of the Rules. Learned counsel for the revenue submits that the dealer ought to be a registered person. Against this, learned counsel for the respondent submits that assuming but not admitting that the registration is necessary, even then, the authorities are required to go into the genuineness of the transactions. Reliance is placed on the judgment of Gujarat High Court in the case of Vimal Enterprise v. Union of India, 2006 (195) ELT 267 (Guj.); wherein the High Court observed as under: 19. The Larger Bench decision of the Tribunal in case of Balmer Lawrie & Co. Ltd. v. Commissioner of Central Excise (supra) on which reliance was placed by revenue merely lays down that registration has been made mandatory only with a view to eliminate bogus, fictitious, fraudulent, benami traders/ dealers from the commercial market and to bring more transparency in the trade and to avoid misuse . Even while accepting the aforestated objective, as already stated hereinbefore, if the identity of supplier and the genuineness of the transaction is established there is no reason why the assessee should be denied what is legitimately due to it. The inference drawn by the Tribunal that the invoice issued by a dealer who had failed to get himself registered upto 31-12-1994 cannot be legally treated as valid document is not 4 supported by a plain reading of the Circular accompanied by various Notifications. In fact the Larger Bench of the Tribunal has failed to assign any reason for drawing any such inference except for stating the object with which the amendment has been brought about. The said decision therefore cannot assist the case of the revenue. 5. In the above view of the matter, even if the dealer is not registered, still benefit cannot be denied to the assessee if the identity of the supplier and genuineness of the supply is established. In view of the Gujarat High Court judgment in the case of Vimal Enterprise (supra), the issue of identity and genuineness of supplier will have to be gone into. Hence, we propose to remit the matter back to the adjudicating authority to consider afresh the identity of the supplier and genuineness of the transaction keeping all rival contentions open on this count. Order accordingly. 6. In view of remand on second question, it is not necessary to deal with third question since it is nothing but the different shed of the same question. 7. Appeal is disposed of accordingly with no order as to costs. (J.P.DEVADHAR, J.) (V.C.DAGA J.)