Per Justice K.Sreedharan :

These appeals have come before a larger Bench on a reference made by a single Member of this Tribunal. Issue referred is clear from the order of reference. It reads :-

"The issue involved in all the cases is common and that is whether the original copy of the invoice issued under Rule 52 A could be called to be an enabling document for taking Modvat credit in terms of Rule 57G."

"A number of judgments was cited before me. Two judgments given by the same Bench directly deal with this issue but give seemingly different ratio. In the case of Mahavir Spinning Mills Ltd., vs. Commissioner of Central Excise, Chandigarh, reported in 1998 (98) ELT 164 ( Tribunal), It was held that even prior to the amended Rule 57G by way of Notification No. 23/94-CE (N.T.), credit could be taken on the basis of original copy of the invoice. The ratio of the same Bench in the case of Nestle India Ltd. Vs. Collector of Central Excise, Chandigarh, reported in 1998 (99) ELT 443 (Tribunal) is that no credit could be taken on the original copy of the invoice. This issue has been also handled by a number of single Members. It is, therefore, necessary that this issue could be settled by a larger Bench. It may be necessary to examine whether the requirement of production of a particular copy of the invoice is merely procedural or whether it is mandatory in nature."

2. All these appeals are at the instance of the Revenue. Different show cause notices were issued to different parties for reversing the Modvat credit availed by them on the ground that they took Modvat credit without support of the duplicate copy of the invoice under which they got the inputs. Manufacturers to whom these show cause notices were issued submitted their explanations. Adjudicating authority, namely, the Assistant Collector, disallowed the credit. Those who availed of the credit were directed to deposit the amount. Penalty was also imposed on the assessees under Rule 173Q (1) (bb) of the Central Excise Rules, 1944 as well. The seven assessees against whom the jurisdictional adjudicating authority passed orders-in-original in the terms stated above, went in appeal before the Commissioner (Appeals). Appellate authority disposed of all the appeals by a common order. According to that authority, since there was no dispute about payment of duty on inputs used in the manufacture of dutiable products, the denial of Modvat credit was purely on a procedural basis that duplicate copy of the invoice has not been produced. In this view, it was held that the Assistant Collector should have accept the original copy of the invoice when there was no dispute amount the payment of duty on the inputs. This stand taken by the appellate authority is under challenge.

3. The fact in Mahavir Spinning Mills, 1998 (98) ELT 164 were that the manufacturer took Modvat credit on original copy of the invoices even though Notification No. 23/94-CE(NT) dated 20.5.1994 case into force and the departmental authorities by order-in-original and order-in-appeal reversed the credit. This Tribunal quashed the orders of the authorities below relying on other decisions observing:

"We find that the tribunal has taken the consistent view in these three cases that since the receipt of the goods is also not in dispute and since the endorsed invoice is a duty paying document and since Notification No. 23/94-CE(NT) was issued within a short span from the date of introduction of the new scheme with effect from 1.4.94, held that modvat credit on original invoice will be available."

This was so done after distinguishing the decision rendered by Madras High Court in Medopharam Vs. Superintendent of Central Excise, [1994 (70) ELT 505] wherein it was held that the requirement of the notification is mandatory. In the case of Nestle India Ltd., 1998 (99) ELT 443, the same bench upheld the orders of the departmental authorities reversing the modvat credit availed of on original copy of the invoice observing:

"Where Ru