*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.3 of 2004 The Commissioner of Central Excise. ..Appellant. -Versus- M/s Toughlat India. ..Respondents ........... Mr.R.G.Bhatt a/w Mr.J.B.Mishra, for the Appellant. Mr.D.B.Shroff, Senior Counsel i/b Mr.Vijay Dhingreja, for the Respondents. .......... CORAM : V.C.DAGA & K.K.TATED, JJ. Date : 10th February, 2010. P.C. 1 Heard. Perused the appeal. 2 The Appellant/Revenue being aggrieved by the order dated 29.07.2003 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai in Appeal No.E/1716/98-Bom has preferred the present appeal under Section 35(G) of the Central Excises & Salt Act, 1944 (herein after referred to as “the said Act of 1944”). The appeal was admitted by this Court vide order dated 30.06.2005 to consider the following substantial questions of law:- “a) Whether on the facts and in the circumstances of the case the Tribunal is justified in not considering *2* the point of pre-printed serial numbers on invoices as mandatory? b) Whether the Tribunal was right in holding that Modvat credit on invoices cannot be disallowed on the ground that serial numbers on the said invoices were written in hand and not printed as required by law?” 3 A few facts giving rise to the present appeal are as under:- The Appellant/Revenue issued the twenty show-causes/ demand notices to the Respondents/Assesses for contravention of the provisions of the Rule-57G of the Central Excise Rules, 1944 as they have availed Modvat credit on the strength of invoices bearing handwritten serial numbers which were not recognized as a proper document in terms of Rule 57-G read with Rule 52-A/57-GG of the said Rules of 1944. After hearing the Respondents, the Adjudicating Authority viz. the Assistant Commissioner of Central Excise, Mumbai passed an order-in-original dated 12.07.1996 and imposed penalty holding that the Respondents contravened the provisions of Rule 57(G) of the Central Excise Rules, 1944 and availed Modvat credit wrongly. 4 Being aggrieved by the order-in-original, the Respondents/Assesses preferred an appeal before the Commissioner of Central Excise (Appeals), Mumbai, who vide its order dated *3* 01.02.1998 dismissed the appeal holding that the Modvat credit availed by the Respondents was inadmissible in law. 5 Against the above order dated 01.02.1998, the Respondents preferred appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai and the Appellate Tribunal vide its order dated 29.07.2003 allowed the appeal and set aside the orders of the Adjudicating Authority and that of the first Appellate Authority. The Appellant/Revenue challenged this order of the Appellate Tribunal in this appeal. 6 Mr.Bhatt, learned counsel appearing for the Appellant/ Revenue submitted that the Appellate Tribunal has failed to consider the observations made by the Commissioner of Central Excise (Appeals). In his submission it is known fact that M/s BPCL generates computer invoices and each invoice is being authenticated. The person, who authenticate invoices, is required to be aware and comply with the provisions of the Central Excise Rules, 1944. According to sub rule (6) of Rule 52A of the Central Excise Rules, 1944 each invoice is required to bear a printed serial number and only authorized person is required to authenticate. 7 The learned counsel further submitted that the printed serial number on the invoice is mandatory factor and if it is not there then the Assessee is not entitled for any benefit of Modvat *4* credit. He further submitted that in the present case the Respondents submitted the invoices bearing handwritten serial numbers and therefore, the Appellate Tribunal erred in accepting the same as legal and valid in law. On this submission, the learned counsel for the Revenue urged that the order passed by the Appellate Tribunal dated 29.07.2003 is liable to be set aside. 8 On the other hand, Mr. Shroff, learned Senior Counsel appearing on behalf of the Respondents-Assesses submitted that it is not mandatory under the Act and Rules of 1944 that the invoices should bear printed serial numbers only. He submitted that the issue as to whether the Assessee is entitled for Modvat benefit if the invoices bear handwritten serial numbers; is already decided by the Larger Bench of the Tribunal in case of Commissioner of Central Excise, Ahmedabad vs. Satyen Dyes reported in 2001(134) ELT 655 (Tri-LB). In his submission, printed numbers are insisted only to maintain genuineness and authenticity thereof. He submits that the supplying party being the BPCL statutory Government of India undertaking, the question of manipulation is absolutely nil. 9 Having heard parties, admittedly in the present case, the Respondents had submitted the invoices bearing handwritten serial numbers and took Modvat credit based on such invoices. The case of the Revenue is that if the invoices bear handwritten serial *5* numbers then the Assesses are not entitled for Modvat credit. No where it is stated under Rules 52 and 57(G)(ii) of the Central Excise Rules, 1944 that serial numbers on invoices should only be printed. 10 In case of Commissioner of Central Excise, Ahmedabad vs. Satyen Dyes (supra) it has been held that it would not be justifiable to deny the Modvat credit by reason of serial number of invoices having been handwritten. On query, the learned counsel for the Revenue was unable to point out whether the Revenue has further challenged the judgment of the Tribunal in the matter of Styen Dyes (supra). The Revenue cannot be allowed to take contrary stand. The Revenue cannot be heard of saying that in case of particular assessee, it will take particular view and in respect of another, on the same set of facts, will take different view. 11 Having said so, the goods in the case in hand were supplied by the BPCL, the Government of India undertaking. The necessity to have serial numbers stamped with franking or stamping machines or typed on typewriter machine or printed on computer printer, is insisted upon to establish genuineness and authenticity of the document since the private parties are prone to manipulate the same. The documents given by the statutory body or corporations like BPCL cannot be placed in that category. Once *6* the authorities are satisfied that the goods covered by the invoices are duty paid and have been received by the manufacturer in the process of manufacturing of final product and there is no chance of misuse, it would, therefore, be not justifiable to deny Modvat credit to the Respondents. 12 In view of the peculiar facts and circumstances of the case, we do not find any reason to interfere with the order dated 29.07.2003 passed by the Appellate Tribunal. We make it clear that the view taken here is being taken in the facts of this case. This order shall not operate as precedent. Accordingly, the questions of law quoted herein above are answered in favour of the Respondents-Assesses and against the Appellant/Revenue. The Appeal is, thus, dismissed with no order as to costs. (K.K.TATED, J.) (V.C.DAGA, J.)