Custom, Excise & Service Tax Tribunal
M/S. Tata Motors Ltd vs Commissioner Of Central Excise, ... on 16 February, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Sl.No.1-7.Appeal Nos. Ex.Ap.122-124/05, 155, 185,186,187/05
(Arising out of Order-in-Original No.
Sl.No.1. 57/Commissioner/2004 dated 26.08.2004,
Sl.No.2. 58/Commissioner/2004 dated 26.08.2004,
Sl.No.3. 59/Commissioner/2004 dated 26.08.2004,
Sl.No.4. 65/Commissioner/2004 dated 25.10.2004,
Sl.No.5. 67/Commissioner/2004 dated 18.11.2004,
Sl.No.6. 69/Commissioner/2004 dated 22.11.2004,
Sl.No.7. 68/Commissioner/2004 dated 18.11.2004,
All passed by the Commissioner of Central Excise, Jamshedpur.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.S. KANG, VICE PRESIDENT
HONBLE SHRI S.K. GAULE, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see
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
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Tata Motors Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Jamshedpur
Respondent (s)
Appearance:
Shri Ravi Raghawan, Advocate for the Appellant (s) Shri J.A. Khan, Authorised Representative(SDR) for the Respondent (s) CORAM:
Honble Shri S.S.Kang, Vice President Honble Shri S.K. Gaule, Member(Technical) Date of Hearing:- 16.02.2010 Date of Pronouncement :- 16.02.2010 ORDER NO.
Per Shri S.S.Kang.
1. Common issues are involved in these Appeals therefore are being taken up together. In these cases the adjudicating authority disallowed the credit on the following grounds:-
a) Vendor M/s. Clutch Auto is under investigation.
b) Credit is availed on the original copy of invoice.
c) Credit was availed without copy of invoice.
d) Duty paid particulars not mentioned in the invoice.
e) Description of the input was not mentioned in the invoice.
f) Importer has not given any declaration regarding their intention to avail credit.
g) RG-23D entry number is not mentioned in the dealers invoice.
h) Credit availed on non-duty-paid inputs.
2. The Appellant fairly submitted that they are not contesting the demand which were confirmed on the following grounds:-
a) Credit on original copy of invoice.
b) Credit was availed without invoice.
c) Credit availed on non-duty-paid inputs.
3. In respect of remaining demands the contention of Appellant is that major portion of the credit was disallowed on the ground that the vendor M/s.Clutch Auto was under investigation for clandestine removal therefore the invoices issued by M/s.Clutch Auto are not valid duty paying documents. The contention is that in the impugned order the adjudicating authority on the one hand confirmed the demand and also directed the jurisdictional central excise authorities to verify the genuineness of the documents and duty paid nature and recover the credit if the same was found not to be in order. The contention is that as the adjudicating authority ordered investigation therefore the confirmation of demand is not sustainable. The Appellant submitted that the Tribunal in their own case vide final order No.A-640-642/KOL/2009 dated 14.10.2009 set aside the demand however upheld the adjudication order in so far as the direction to the jurisdictional authorities to verify the genuineness of the documents.
4. In respect of the denial of credit on the ground that description of input is not given in the invoice the contention is that the Tribunal in the above-mentioned order set aside the demand which was made on the similar ground. The contention is that as part numbers of the motor vehicles are mentioned in the invoice and parts were cleared on payment of duty therefore the denial of credit is not sustainable.
5. In respect of the demand which was confirmed on the ground that duty debit particulars are not mentioned the contention is that the value of the goods and amount of duty leviable is mentioned in the invoice, however the vendors have debited the duty by a consolidated entry and the Tribunal in the above-mentioend order allowed the credit.
6. In respect of the demand of credit on the ground that importer has not given any declaration regarding their intention to avail credit the contention is that goods were received by the Appellant in their factory under the cover of bill of entry. There is no dispute regarding payment of the duty. The Appellant relied upon the decision of the Honble Supreme Court in the case of Union of India v. Marmagoa Steel Ltd. 2008 (229) E.L.T. 481 (S.C.) to submit that in a similar situation the Honble Supreme Court allowed the credit.
7. In respect of denial of credit on the ground that RG-23D entry is not mentioned in the invoices the contention is that the inputs were received from registered dealer and duty payment particulars are mentioned in the invoice therefore credit cannot be disallowed. The only objective of the Revenue is that in the invoice the particulars regarding receipt of the goods by the dealer is not mentioned, only entry number of RG-23D in respect of receipt of goods is not mentioned in the invoice hence not sustainable.
8. Revenue submitted that adjudicating authority after taking into consideration the relevant provisions of rules and the documents produced by the Appellant denied the credit. The contention is that M/s.Clutch Auto is under investigation regarding clandestine removal of the goods therefore the credit was rightly disallowed with the rider that on verification if the invoices are found to be genuine the Appellants are entitled for credit. The Revenue relied upon the findings of the adjudicating authority.
9. We find that in respect of denial of credit on the invoices issued by M/s.Clutch Auto the Tribunal in Appellants own case vide order dated 14.10.2009 set aside the confirmation of demand, however upheld the order of the adjudicating authority in respect of the direction to the jurisdictional central excise authority to verify the genuineness of the documents and duty-paid nature and recover the credit if the same was found to be not in order. In view of the earlier order the demand is set aside and the order regarding verification of genuineness of documents is upheld.
10. In respect of the demand confirmed on the ground that duty debit particulars are not mentioned and the input description is not given in the invoice we find that the Tribunal in their own case vide order dated 14.10.2009 set aside the demand which are on the same ground therefore in view of the earlier order the impugned order in this regard is set aside.
11. In respect of the demand which was confirmed on the ground that importer has not given any declaration in the bill of entry we find that this issue is now settled by the decision of Honble Supreme Court relied upon by the Appellant and as the goods were received by the Appellant in their factory under the cover of bill of entry.
12. In respect of the denial of credit where in dealers invoice the number of RG-23D entry is not mentioned we find that when the value of goods and duty payment particulars are mentioned in the invoice and genuineness of the invoice not in dispute the Appellant is entitled for the credit hence the demand in this regard is also set aside.
13. In respect of penalty we find that in two cases Rs.5,000/-(Rupees Five Thousand only) penalty is imposed and in other cases Rs.2,500/-(Rupees Two Thousand Five Hundred only) is imposed. As we find that there is no dispute that Appellants have received the material under the duty paying document and the credit is being denied as the documents were found to be defective on certain grounds in the present Appeals we are allowing substantially all the credit which was denied therefore we do not find any justification for imposition of penalty hence the penalties are set aside.
14. Appeals are disposed of as indicated above.
(Pronounced and dictated in the open court.)
Sd/ sd/
(S.K. GAULE) (S.S.KANG)
MEMBER(TECHNICAL) VICE PRESIDENT
sm
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Appeal No.Ex.Ap.122-124/05, 155, 185, 186, 187/05