Custom, Excise & Service Tax Tribunal
S S Engineering Works vs Kolkata South on 24 March, 2023
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
REGIONAL BENCH - COURT NO.2
Excise Appeal No. 79200 of 2018
(Arising out of Order-in-Appeal No.107/Kol-V/2018 dated 13.07.2018 passed by
Commissioner of CGST & CX (Appeals-I), Kolkata.
M/s. S. S. Engineering Works
(Mukherjee Gate, Raipur, Maheshtala, 24 Parganas (South)
W. B.-700141)
Appellant (s)
VERSUS
Commr. of CGST & CX, Kolkata South Commissionerate
(180, Shantipally, Rajdanga Main Road, Kolkata-700107)
Respondent (s)
APPEARANCE :
Shri N. K. Chowdhury, Advocate for the Appellant Shri Joydip Chattopadhyay, Authorized Representative for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) FINAL ORDER NO.75175/2023 Date of Hearing : 24th March 2023 Date of Decision : 24th March 2023 PER R. MURALIDHAR M/s. S. S. Engineering Works have procured their inputs like M. S. Angles, M. S. Channels etc. from M/s. Roshanlal Bhagirathmal under various Invoices. The Excise Duty shown in such Invoices have been taken as Cenvat Credit. The Department issued Show Cause Notice on the ground that the invoices of M/s. Roshanlal Bhagirathmal show the Name and Address of the Agent as the buyer and the present Appellant is shown as consignee. Therefore, Show Cause Notice was issued on the ground that the Appellant was not eligible to take the Cenvat Credit of Rs.1,68,946/-.
2. After due process, the amounts were confirmed at the lower stages. Hence, the Appellant is before the Tribunal.
3. The Ld. Advocate submits that in all the Invoices, the Appellant's Name is prominently appearing as the Consignee along with the details of their ECC Number, Range, Division and Commissionerate etc. Because of their internal arrangements, the Vendor shows the name of their agent as the buyer and other details of the Appellant is given on 2 Excise Appeal No. 79200 of 2018 left side of the Invoices mentioning the Appellant as the Consignee. Admittedly, there is no dispute that these goods have been received by them in their factory and accounted for in their RG-23 records. Thus, all the records have been properly maintained for all these consignments. He relies on the case law of Kunststoff Polymers Ltd. Vs. Commr. of C. Ex., Bhopal-2009 (247) E. L. T. 546 (Tri. Del.), wherein similar issue was decided in favour of the Appellant.
4. The Ld. AR reiterates the findings of the Lower Authorities and submits that the Orders were correctly passed by the Lower Authorities since the Invoices do not show the Appellant as the buyer of the goods.
5. Heard both sides and perused the documents.
6. Admittedly, there is no dispute that the goods in question have been received by the Appellant in their factory premises and the same were properly recorded in their Books of Account. Even the Invoices in question clearly show the details of the Appellant along with their ECC Number and Central Excise Range and Division etc. The Tribunal in the case of Kunststoff Polymers Ltd. Vs. Commr. of C. Ex., Bhopal -2009 (247) E. L. T. 546 (Tri.-Del.) has held as under:-
4. We have carefully considered the submissions from both the sides and have pursued the records. There is no dispute about the fact that the goods have been procured by the appellant through M/s. Sumitomo Chemicals India Pvt. Ltd. However, from the records, it is seen that M/s.
Sumitomo Chemicals India Pvt. Ltd. had placed the order for the goods with M/s. SC Enviro Agro India Pvt. Ltd., a second stage dealer who supplied the goods directly under their invoices to the appellant, mentioning the appellant's name as the consignee while at the same time mentioning M/s. Sumitomo Chemicals India Pvt. Ltd. as the customer. It is on this basis that Cenvat credit has denied to the Appellant in respect of these invoices.
5. As per Rule 7(1) of the Cenvat Credit Rules, 2002, the invoices issued by a first stage dealer or a second stage dealer are valid documents for taking Cenvat credit. In this case, there is no dispute about the fact that M/s. SC Enviro Agro India Pvt. Ltd., who had issued the invoices and on the basis of which the Cenvat credit was taken by the appellant, are a second stage dealer. We find that Tribunal in the case of Malwa Cotton Spg. Mills Ltd. v. CCE, Chandigarh (supra), relying upon the Board Circular No. 96/7/95-CX dated 13-2-95 has held that "mere mention of the words 'on account of the dealer' on the invoices or the name of the dealer on the invoice, in itself, would not make the invoices ineligible documents for availing Modvat credit", so far as the goods have been directly received in the user's premises. Similar view 3 Excise Appeal No. 79200 of 2018 has been taken by the Tribunal in the case of Prakash Cotton Mills Ltd. v. CCE, Bombay (supra), wherein the Tribunal held that in a situation where the inputs were received from a manufacturer I but through a dealer, the Cenvat credit cannot be denied so long as the co-relation between goods received by the user manufacturer from the dealer under the dealer's invoice can be established with the goods received by the dealer from the manufacturer. This judgment of the Tribunal has been followed in the cases of Beepee Coatings Ltd. v. CCE, Vadodara reported in 1997 (92) E.L.T. 223 (Tri.-Bom.) and Ashok Leyland Ltd. v. CCE, Chennai reported in 2003 (161) E.L.T. 710 (Tri.-Chennai). In this case it is not the case of the Department that the goods were notreceived directly by the appellant from a second stage dealer M/s. SC Enviro Agro India Pvt. Ltd. In view of these circumstances, just because the invoices issued by M/s. SC Enviro Agro India Pvt. Ltd. mention M/s. Sumitomo Chemicals India Pvt. Ltd. as the customer, while at the same time mentioning the appellant as the consignee, will not become invalid document for taking Cenvat credit, we therefore, hold that the impugned order is not sustainable. The same is set aside and the appeal is allowed. (emphasis supplied)
7. The facts of the present case are similar. Therefore, respectfully following this decision, I hold that the Appellant is eligible for the Cenvat Credit and allow the Appeal with consequential relief.
(Dictated and pronounced in the open court.) Sd/-
(R. Muralidhar) Member (Judicial) Pooja