Hon'ble Surya Prakash Kesarwani, J.—Heard Sri Amit Mahajan, learned counsel for the appellant and Sri A.P. Mathur, learned counsel for the respondent-assessee.

2. The appeal was admitted on the following substantial question of law:

‘Whether on the facts and circumstances, the modvat credit can be taken on the basis of the photo-stat copy of BOE?’

3. The submission of learned counsel for the appellant is that modvat credit was wrongly allowed by the impugned order of the Tribunal on the basis of photo copy of the original invoice/triplicate copy of bill of entry. He submits that in view of the provisions of Rule 57G (3) of the Central Excise Rules 1944 (hereinafter referred to as the Rules), modvat credit was not admissible to the respondent.

4. Learned counsel for the respondent-assessee submits that there is no dispute that at the time when the goods in question were received in the factory of production, the same were covered by all requisite documents including triplicate copy of a bill of entry but subsequently triplicate copy of the bill of entry was misplaced and, as such, the assessee obtained the exchange control copy of the relevant bill of entry from the bank and produced the same before the central excise authority concerned. The assessee also executed an indemnity bond to the extent of credit availed. Apart from this the assessee also produced before the concerned central excise authority the copy of invoice dated 29.11.1996, copy of MR No. 1313 showing gate entry No. 798 dated 31.1.1997, photo copy of transporter copy of invoice/chalan No. 2044 dated 28.1.1997, copy of MR No. 220706 dated 30th January, 1997. He submits that neither the receipt of the goods in question in the factory of production under the cover of valid documents is disputed nor it has been disputed by the Central Excise Authorities that the goods have been used for the intended purpose in the factory of production. He, therefore, submits that in the absence of any dispute with regard to the receipt of the goods in the factory for their intended purpose and the duty paid nature, supported by documents as aforementioned, the credit of duty was lawfully allowed by the Tribunal. He further submits that the findings recorded in the impugned order of the Tribunal are findings of fact and, as such, no substantial question of law arise.

5. We have carefully considered the submissions of learned counsel for the parties.

6. Briefly stated the facts of the present case are that undisputedly the petitioner received certain duty paid goods in his factory for intended purpose covered by all the relevant documents including the documents as provided in clause (c) of Sub Rule (3) of Rule 57G. However, subsequently, Triplicate copy of the relevant bill of entry was misplaced. Under the circumstances the assessee obtained from the bank the exchange control copy of the relevant bill of entry and submitted the same before the concerned central excise authority.

7. A show-cause notice dated 30th June, 1992 was issued by the Superintendent of Central Excise requiring the assessee to show-cause as to why the modvat credit amounting to Rs. 58,70,993/- should not be demanded and recovered under Rule 57-I of the Rules for failure of the assessee to produce the duty paying document for defacement. The assessee submitted reply and explained the matter. However, being dissatisfied with the reply, the Assistant Commissioner Central Excise Division-III NOIDA disallowed the modvat credit of Rs. 54,12,753/- vide order in original dated 17th June, 1998. Aggrieved with this order the assessee filed an appeal before the Commissioner (Appeals) Customs and Central Excise, NOIDA which was dismissed vide order dated 31st March, 2003 against which the assessee preferred Excise Appeal No. 1896 of 2003-NB (B) before the Customs Excise and Service Tax Appellate Tribunal, New Delhi which was allowed by the impugned final order No. 363 of 2004-B dated 20th February, 2004. Aggrieved