Per Shri P.C. Jain:

Briefly stated, the facts of the case are as follows :-

1.1 The Respondents herein availed modvat credit amounting to Rs. 4,007.20 (BED) and Rs. 400.72 (SED) on inputs vide GP1 dated 10.12.91 which was endorsed thrice. Respondents utilised the same credit towards payment of Central Excise duty on their final product. A show cause notice was issued to the Respondents as to why the said amount of modvat credit taken irregularly should not be disallowed and why a penalty should not be imposed in as much as according to the Board's instructions only two endorsements were allowed on the Gate Pass for taking modvat credit. On adjudication, the amount of demand, as aforesaid, was confirmed. The Respondents herein thereafter filed an appeal to the Collector of Central Excise (Appeals), who relying on the Tribunal's decision in the case of SBS Organics Pvt. Ltd. Vs. Collector of Central Excise, Vadodara reported in 1990 (45) ELT 701 allowed the Appeal.

1.2 Hence this Appeal by the Revenue.

2. Learned JDR Shri S.N. Ghosh, pointing out to the Grounds of Appeal filed by the Revenue, states that as against the Tribunal's decision in the case of SBS Organics relied upon by the lower appellate authority, a very recent decision in the case of Commissioner of Central Excise, Coimbatore Vs. Shri Gopalakrishna Poly Industries reported in 1996 (84) ELT 235 (Tribunal) has come which holds to the contrary that a Gate Pass endorsed thrice is not valid for the purpose of taking modvat credit. He, therefore, prays for allowed the Appeal.

3. Opposing the contention of the learned JDR, Shri S.N. Sinha-Mahapatra, learned Advocate for the Respondents, submits that reliance placed on Gopalakrishna's case mentioned supra is not correct in as much as a wrong reliance has been placed in that case on Bombay High Court's judgement in the case of Bombay Goods Transport Association Vs. Union of India reported in 1995 (77) ELT 521. That was a case, he submits, of loss of Gate Pass in transit and, therefore, the modvat credit was to be taken on the certified copy of the Gate Pass. This had been earlier permitted by the Board. Later on, this facility on the basis of certified copy was withdrawn and Trade Notice was issued by the Collector based on the Board's instructions. What was before the Bombay High Court was whether the Trade Notice issued on those circumstances for withdrawing the facility of modvat credit on a certified copy was valid. No such question whether the modvat credit would be available on thrice endorsed Gate Pass or not was before the said High Court. Therefore, the reliance placed on Bombay High Court's decision by the SRB in the case of Gopalakrishna is not correct and for this reason Gopalakrishna's decision should not be relied upon. This Bench, he further submits, has been taking a consistent view of thrice endorsed Gate Passes placing reliance on SBS Organics. He, therefore, prays for dismissing the Appeal.

4.1 I have carefully considered the pleas advanced from both sides. I am inclined to agree with the submissions of the learned Advocate for the Respondents. The case of SBS Organics is a direct decision on the issue involved herein viz. whether a thrice endorsed Gate Pass is valid for the purpose of giving the modvat credit or not. Reliance is, therefore, better placed on that decision rather than on the decision of SRB in the case of Gopalakrishna Poly Industries.

4.2 Apart from that, I observe from para-4 of Bombay High Court's decision quoted in SRB's judgement in the case of Gopalakrishna's case that Bombay High Court has, while upholding the validity of Trade Notice issued by the Collectorate, also observed that -

"It is for the claimant to prove by such documents as are required to be submitted that duty has been paid on excisable goods used as inputs. One of such documents required to be submitted being the Gate Pass. In other words, if genuine documents like invoices, extracts of Part I and Part II of RG 23A For