Ld. advocate, Shri S.K. Roychowdhury prays for waiver of pre-deposit and stay of recovery of Rs. 4,68,967.74 denied as modvat credit taken by the appellants/applicants on the strength of original invoices issued during the period 1.6.94 to 9.6.94. He also prays for a similar treatment of penalty of Rs. 10,000/- imposed on the applicants. He submits that the modvat credit has been denied on the ground that credit has not been taken on the "duplicate copy" (Transporter's copy) of the invoice; rather it has been taken on the original copy of the invoices meant for the appellant itself. Reasoning of the lower authorities is, he however submits, that it is only duplicate copy of invoices, w.e.f. 1.4.94 which has been prescribed as a valid document under Rule 57G read with Rule 52A for the purpose of taking the modvat credit. On the other hand, ld. advocate submits that his case is that the goods have been received by the applicants from the stockyard of SAIL and not directly from the manufacturer. Therefore, provision of Rule 52A regarding issue of invoices in four copies and correspondingly taking the modvat credit only on "duplicate copy" of invoices in terms of Rule 57G, does not arise in the present case. In cases of invoices issued by SAIL, practice had always been to take modvat credit on the customer's copy issued by the stockyard of SAIL. This practice, he further submits has been further sanctified by subsequent Notification No. 32/94 dated 4.7.94 which also lays down that modvat credit can be taken on the basis of `original copy' issued by a registered dealer. He, therefore, submits that nothing wrong has been done by the appellants in taking modvat credit on the original copy of the invoices.

2. Ld. JDR, Shri S.N. Ghosh opposes the contention of the ld. advocate and submits that nowhere it has been accepted in the orders of the authorities below that the modvat credit has been taken on the invoices issued by stockyard of SAIL. He, therefore, reiterates the findings of the authorities below.

3.1 I have carefully considered the plea advanced from both sides. I am inclined to agree with the ld. advocate for the appellants/applicants that the question of taking modvat credit on 'duplicate copy' of invoices in terms of Rule 57G read with Rule 52A arises only if the invoices have been issued by a factory where the goods originally paid duty on the removal from the factory of manufacturer or from the bonded store room of the factory. In the instant case, it has been submitted by the ld. advocate and it has been urged during the submissions right from the original stage, that the invoices in the present case, have been issued by the stockyard of SAIL which is not a factory; it is corresponding to a dealer of the excisable goods whose invoices were accepted as valid duty paying documents. It is always customer's copy of the invoices issued by the stockyard of SAIL that modvat credit was taken.

3.2 In view of the factual position on submissions at lower stages, I am inclined to agree with the ld. advocate, that the modvat credit has been rightly taken subject of course to verification of this limited fact that the invoices have been issued in the present case by the stockyard of SAIL in terms of Notification 15/94-CE (NT) dated 30th March, 1994. Appeal is thus allowed by remand in terms of aforesaid observations. Consequently, Stay Petition also gets disposed of.