Custom, Excise & Service Tax Tribunal
Kinetic Engineering Ltd vs Commissioner Of Central Excise, ... on 11 February, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. APPEAL NO. E/14/08 (Arising out of Order-in-Appeal No. P-III/SLC/072/2007 dated 31/08/2007 passed by the Commissioner (Appeals),Central Excise, Pune-III For approval and signature: Honble Shri A.K. Srivastava, Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
=============================================================
Kinetic Engineering Ltd.
:
Appellants
VS
Commissioner of Central Excise, Pune-III
Respondents
Appearance
Shri Anant Suresh, Mangrulkar, Asst. Manager. for Appellants
Dr. T.Tiju, Authorized Representative JDR)
CORAM:
Shri A.K. Srivastava, Member (Technical)
Date of hearing : 11/02/2009
Date of decision: /02/2009
ORDER NO.
Per : Shri A.K. Srivastava, Member (Technical)
Heard both the sides and perused the records.
2. The short issue involved in the instant appeal is regarding the admissibility of the Cenvat Credit of Rs. 12,528/-, Rs.5562/- and 15464/-.
3. The only ground on which the Cenvat Credit of Rs. 12,528/- has been denied to the appellants is that they have taken the credit on their own invoice, which is not a valid document under Rule 7 of the Cenvat Credit Rules, 2002. I find that the Cenvat Credit has been availed by the appellants on receipt of the goods back into their factory from the consignee as such, accompanied by the Excise duty paid invoice issued by the appellants (Manufacturer) evidencing payment of duty on such goods. The Department has not questioned the receipt of the goods nor its duty paid nature. Hence, the denial of the Cenvat Credit on technical ground is not justified. Further, the appellants have stated that the consignee, to whom the goods were sent by them is not a Central Excise assessee and, therefore, the question of taking the Cenvat Credit at the consignees end on the impugned invoice does not arise. The Department has also not adduced any evidence to the effect that the credit has been taken by the consignee on the invoice in question. Hence, I hold that the cenvat credit of Rs. 12,528/- is admissible to the appellants.
4. As regards the availment of credit of Rs.5,562/- on the basis of RCIA is concerned, I find that the appellants sent some rejected inputs i.e. Mirror 1100 Nos, to their Vendor as such for rectification under cover of RGDN (Rejection Goods Dispatch Note) No. 303502 dtd. 25.12.2000, the vendor also has returned the goods back to the appellants on 27.04.01, the receipt was recorded under RCIA (Receipt Cum Inspection Advice GIN) No.752255 dtd. 27.04.01. However, the vendor had not provided the attested copy of (Rejection Goods Dispatch Note) with all endorsement of details of dispatch of goods and process. Therefore, the appellants reversed the Cenvat credit of Rs. 5,562/- vide entry No. 10723 dated 26.08.01 as required under the erstwhile Rule 57AC (5) (a) and Rules 4(5) (a) of CCR, 2004, and debited the amount to vendor against the debit note no. 61915 dated 11.01.01. On information from the vendor that the rejected goods have been rectified and returned back to appellants and recorded under RCIA No. 752255 dtd 27.04.01, the appellants availed the Cenvat Credit on the strength of the RCIA. The credit has been rightly availed by the appellants. The denial of the Cenvat Credit of Rs. 5,562/- is not justified as the receipt of the impugned goods is borne out by the records.
5. As regards the availment of credit of Rs. 15,464/- on the basis of RCIA is concerned, I find that against various LRGNS, the appellants had sent some line Rejection for rework, remake to its Vendor M/s.. Cast Masters. Since the vendor had not returned back the Aluminum Alloy (Casting) 1178 Kg., the appellants had reversed the cenvat credit of Rs. 15464/- against the Cenvat entry no. 13286 dtd.06.11.2001 and raised the debit note no. 1180 dtd.19.11.2001 for Rs. 15,463.63 for excise and Material cost. However, the vendor objected to the same and informed the appellants that the goods (casting) are re-supplied back to the appellants alongwith the details of dispatch, and receipt at the appellants factory. Since the goods were received in the factory, the appellants re-availed the cenvat credit debited by them as per provisions of erstwhile Rule 57AC (5) (a). The credit has been rightly availed by the appellants. The denial of the Cenvat credit of Rs.15,464/- is not correct as the receipt of the impugned goods is established from the records.
6. Since the Cenvat Credit of Rs.33,554/- (Rs.12,528/-, Rs, 5,562 and Rs. 15,464/-) has been held to be admissible on merits, the question of demanding interest on the same and the imposition of the penalty on the appellants does not arise. The same are set aside .
7. The impugned order passed by the Commissioner (Appeals) is set aside. The appeal filed by the appellants is allowed with consequential relief as per law.
(Pronounced in court on 02/2009
A.K. Srivastava
Member (Technical)
Sm
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