The central legal point established in the judgment is the interpretation of the provisions of Rule 57G(6) and the intent of the Legislature in enabling modvat credit on original invoices under specific conditions.

D.K.Jain, J.

1. These five appeals, by the Revenue, under Section 35G of the Central Excise Act, 1944 (for short, the Act), are directed against a common order, dated 5-10-2004, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short, the Tribunal) in Appeal Nos. E/3365-09/08-NBS.

2. Since these appeals arise out of a common order, the same are being disposed of by this order. According to the Revenue, the order of the Tribunal gives rise to the following substantial question of law:

Whether Modvat credit on original documents, which were not prescribed documents, could be availed without following the procedure laid down in this regard?

3. Briefly stated, the background facts, giving rise to the present appeals, are as follows:

The respondent-assessee is engaged in the manufacture of Carbon Black, falling under Chapter 28 of the Schedule to the Central Excise Tariff Act, 1985. It was availing the facility of Modvat credit under Rule 57A of the erstwhile Central Excise Rules, 1944 (for short, the Rules). On scrutiny of RT-12 returns, filed by the assessee, it was noticed that the assessee had taken Modvat credit on the strength of original copies of invoices without taking/applying for any permission from the competent authority, as required under Rule 57G(2A) of the Rules. Consequently, notices were issued to the assessee to show cause as to why the said credit availed of be not withdrawn; recovered and penal action under Section 173Q(1)(bb) of the Rules be not taken against it. In its reply, the assessee stated that when the inputs were received in the factory, the driver did not hand over the duplicate copy of the invoices. Affidavits of the drivers, to the effect that they have lost the duplicate transport copy, were also filed. Not being satisfied with the explanation furnished by the assessee, the adjudicating authority disallowed the Modvat credit and confirmed the demands under Rule 57-I of the Rules. Penalties under Rule 173Q(bb) were also levied.

4. Aggrieved, the assessee preferred appeals to the Commissioner (Appeals) Central Excise Commissionerate, who remanded the case to the adjudicating authority for de novo proceedings. In remand proceedings, the adjudicating authority allowed the Modvat credit, inter alia, holding that there was no dispute regarding the duty-paid character of the inputs and their receipt/utilisation in the manufacture of final product.

5. Being aggrieved, the revenue successfully took the matter in appeals to the Commissioner.

6. Not being satisfied with the view taken by the Commissioner, the assessee took the matter in further appeals to the Tribunal. By the impugned order, the Tribunal has allowed the appeals. Hence, the present appeals.

7. We have heard Mr. M.S. Guglani, learned Central Government Counsel appearing on behalf of the revenue. Learned Counsel has submitted that the provisions relating to claim for Modvat credit being substantive in character, furnishing of duplicate copies of invoices, under sub-rule (2A) of Rule 57G of the Rules, inserted on 28-5-1994, is a mandatory condition, which an assessee is required to comply with. Learned Counsel has argued that since, in the instant case, the assessee had not sought permission of the Assistant Commissioner to make the claim on the basis of original invoices, its claim for Modvat credit could not be entertained. Learned Counsel submits that while allowing assessees appeals, the Tribunal has ignored the statutory provisions and therefore, its order gives rise to the afore-mentioned substantial question of law.

8. We are unable to agree with the learned Counsel. The question whether a statutory provision is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. It needs little emphasis that all parts of the Statute or Sections have to be construed together with reference to the context, so that construction put on a particular