Custom, Excise & Service Tax Tribunal
M/S. Jay Ushin Ltd vs Cce, Delhi-Iii on 13 December, 2012
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:13.12.2012
For approval and signature:
Honble Shri Rakesh Kumar, Member (Technical)
1. Whether Press Reporters may be allowed to see the order for
Publication under 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 authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
Excise Appeal No.E/2875 of 2010-SM
(Arising out of Order-in-Appeal No.214/MA/GGN/2010 dated 30.04.2010 passed by the Commissioner of Central Excise (Appeals), Delhi-III).
M/s. Jay Ushin Ltd. Appellants
Vs.
CCE, Delhi-III Respondent
Appearance:
Shri B.L. Narsimhan, Advocate with Shri Hemant Bajaj, Advocate for the appellant.
Shri R.K. Mathur, AR for the respondent. Coram: Honble Shri Rakesh Kumar, Member (Technical) Final Order No.55147/2013 dated 13.12.2012 Per Rakesh Kumar:
The appellants are manufacturers of motor vehicle parts chargeable to central excise duty. During the period December, 2007 and Jan. 2008, they took cenvat credit of Rs.5,72,286/- in respect of imported transponders purchased from M/s. Siemens VDO Automotive Components Pvt. Ltd. (SVACPL) who was a registered dealer. SVACPL came into existence from 1.12.2007. The goods in question had also been imported by M/s. Siemens Ltd., who are also a registered dealer and had surrendered registration on 30.11.2007 and w.e.f. 1.12.2007, the Automotive Division of Siemens Ltd. had been taken over by SVACPL. But department was of the view that invoices on the basis of which the cenvat credit had been by the appellant are not valid documents, issued a show cause notice for denial of cenvat credit and its recovery and also for imposition of penalty. This show cause notice was adjudicated by the Addl.Commissioner vide order-in-original dated 9.10.2009 by which the cenvat credit demand of Rs.5,72,286 was confirmed against the appellant along with interest and penalty of equal amount was imposed on them under Rule 15 (2) of the Cenvat Credit Rules. On appeal being filed before the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 27.4.2010 upheld the Addl. Commissioners order against which this appeal has been filed.
2. Heard both the sides.
3. Shri B.L. Narsimahan, ld. Counsel for the appellant, pleaded that goods, in question, in respect of which cenvat credit of the additional customs duty had been availed, had been originally been imported M/s. Siemens Ltd. who were a registered dealer, that the entire business of Automotive Division was taken over by SVACPL w.e.f. 1.12.97 , that para 5 of the Commissioner (Appeals)s order itself states that the goods, in question, had been imported by M/s. Siemens Ltd. and same were subsequently sold to SVACPL, who in turn sole them to the Appellant, that in view of this, there cannot be any doubt about the duty paid nature of the goods in question, that there is no basis for the departments allegation that the provisions of sub-rule (5) & (6) of Rule 9 of the Cenvat Credit Rules, 2004 have not been complied with in respect of the invoices on the basis of which cenvat credit had been taken, that the Tribunal in the case of Venus Stampings Pvt. Ltd. Vs. CCE, Delhi-IV reported in 2007 (208) ELT 516 (Tribunal-Delhi) and M/s. Precision Stamping Vs. CCE reported in 2005 (188) ELT 453 (Tribunal-Delhi) has held that the invoices issued by a registered dealer, who had purchased the entire business from the another registered dealer are valid invoices for availment of cenvat credit, that the ratio of these decisions is squarely applicable to this case as it has not denied the goods had been imported by M/s. Siemens Ltd. (Automotive Division) which subsequently had been sold to M/s. SVACPL. He, therefore, pleaded that the impugned order is not sustainable.
4. Shri R.K. Mathur, ld. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that since M/s. Siemens Ltd. had surrendered their registration on 30.11.2007 and the sale of the goods imported by them was after 30.11.2007, the invoices issued by SVACPL to the appellant are not valid documents for availment of cenvat credit. He, therefore, pleaded that there is no infirmity in the impugned order.
5. I have considered the submissions and perused the records. Para-5 of the impugned order passed by the Commissioner (Appeals) clearly states that the goods, in question, had been imported by M/s. Siemens Ltd. and subsequently, the same were sold to SVACPL, who in turn have sold them to the appellant thereby passing on the cenvat credit to the tune of Rs.5,72,286/-. Thus, this is case where the it is not disputed that M/s. Siemens Ltd. were registered as a dealer and subsequently after taking over of the business of Automotive division of the Siemens Ltd. by SVACPL, SVACPL also obtained registration as a registered dealer. When it is not disputed that the goods, in question, on which the cenvat credit had been taken by the appellant, had been sold to M/s. SVACPL, who, in turn, sold the same to the appellant, it would not be correct to deny the cenvat credit when both the M/s. Siemens Ltd. and M/s. SVACPL were registered as dealers. SVACPL can be treated as second stage dealer and the invoice issued by them would be valid document for cenvat credit. I also find that in identical case of M/s. Venus Stampings Pvt. Ltd. (supra) when the business of one registered dealer is taken over by another registered dealer along with stock of goods, the invoices issued by that registered dealer who had taken over the business along with the stock, would be valid document for cenvat credit. In view of this, the impugned order is not sustainable. The same is set aside. The appeal is allowed.
(Rakesh Kumar ) Member (Technical) Ckp.
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