Per Shri V.P. Gulati :

The issue in the appeal relates to the grant of MODVAT credit in respect of goods which were received under the cover of invoices which did not indicate whether the same was in the case of the original or duplicate or triplicate or quadruplicate or an extra copy. A perusal of the orders of the authorities below does not reveal as to the status of this extra copy. It has not been shown to be either original, or duplicate or triplicate or quadruplicate. The learned lower authority, however, relying on the judgement of the Hon'ble Bombay High Court in the case of Bombay Goods Transport Corporation reported in 1995 (77) ELT 521 (Bom), has held that subject to the verification of the duty paid nature of the goods, benefit of the MODVAT credit could be allowed. In para 3 of his order, he has held as under :

3. I observe that in all the above cases, the defects/lapses on account of which credits have been denied, are curable, Further in accordance with the decision of Division Bench of Bombay High Court, cited above, appellants can claim credit on production of alternate evidence with regard to receipt of duty paid inputs in their factory and their use in the production process. Accordingly, all the appeals are remanded to the lower authority for considering the evidence appellants may like to provide, in this regard.

2. The learned JDR for the department has pleaded that by allowing the benefit of MODVAT credit against the extra copy of the invoice, the revenue's interest has been prejudiced in as much as the duplicate copy, which is to be transporter's copy could be misused for taking MODVAT credit elsewhere and unless it could be shown that the respondents had the duplicate copy also with them, the benefit of MODVAT credit should not be allowed. He has pleaded that under Rule 52A, the duplicate copy of the invoice i.e. the transporter's copy has been notified as the document under the cover of which the goods for MODVAT purposes were required to be moved and received in an assessee's factory. He has pleaded that the defect, as pointed out, is not curable unless the duplicate copy of the invoice was also available and the same, only in that event there could be an assurance that there is no diversion of the duplicate invoice for utilising the benefits of the MODVAT credit.

3. The learned Advocate for the respondents has pleaded that the order passed is only a remand order and the Commissioner has only directed for a verification of the duty paid nature of the goods and only in that event, he has ordered for the grant of MODVAT credit. He has pleaded that the Tribunal has been taking liberal view in respect of such omissions and has sought for upholding the order of the lower authority's order.

4. We have considered the submissions of both the sides. We observe that the ratio of the decision of the Hon'ble Bombay High Court cited supra would be applicable only in the event where it is shown that the transporters copy i.e. the notified document under Rule 57G had been lost. There is no such plea made before us or before the lower authorities in this regard. The Hon'ble Bombay High Court in that order has upheld the validity of the authority of the Government to issue or notify certain documents which can be considered valid for MODVAT purposes.

5. We agree with the learned Advocate for the respondents that for reason of any omission, on the part of the suppliers, for no fault of the respondents, they should not be denied the substantive benefit. We observe that the benefit has to be allowed subject to the fulfilment of the conditions and in the event where there is a substantive compliance with the requirements of the rules, including the requirement of the production of the notified document credit should be allowed. In the present case, there is no plea before us, nor we find it in the narration of facts in the orders of the authorities below that the duplicate copy was in fact available and by reason of omiss