Custom, Excise & Service Tax Tribunal
M/S. Ahlcon Parenterals (India) Ltd vs C.C.E., Jaipur-I on 28 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066. Date of Hearing/Order : 28.09.2016 Appeal No.E/1731/2011-EX[SM] [Arising out of Order-in-Appeal No.127(DKV)CE/JPR-I/2011, dated 07.04.2011 passed by C.C.E.(Appeals), Jaipur-I] M/s. Ahlcon Parenterals (India) Ltd. Appellant Vs. C.C.E., Jaipur-I Respondent
Appearance Mr. Anurag Kapoor, Advocate - For Appellant Mr. H.C. Saini, DR - For Respondent CORAM: Honble Mr. V. Padmanabhan, Member (Technical) Final Order No.54035/2016, dated 28.09.2016 Per Mr. V. Padmanabhan :
The appellant is engaged in the manufacture of pharmaceutical formulations falling under Chapter 30 of the Central Excise Tariff Act, 1985. They also function as loan licensee of M/s. Micro Lab Ltd. under which they received inputs for making formulations for the former manufacturer. They received certain inputs which were imported by M/s. Micro Lab Ltd. under the cover of Bills of Entry filed by M/s. Micro Lab Ltd. They availed cenvat credit on the basis of these Bills of Entry. At the time of audit undertaken by the Department, it was pointed that many of these Bills of Entry wee not endorsed in the name of the appellant. When these were sent back to the suppliers for endorsement, they were lost in transit. The original authority vide its order dated 22.03.2010 ordered for recovery of cenvat credit availed by the appellant on the basis of Bills of Entry of M/s. Micro Lab Ltd., which were not endorsed in their favour. When challenged in appeal, the Commissioner (Appeals) upheld the demands. Hence, the present appeal.
2. Heard Shri Anurag Kapoor, ld. advocate for the appellant and Shri H.C. Saini, ld. Departmental Representative for Revenue.
3. Ld. advocate submitted that after loss of the original Bills of Entry in transit, the supplier obtained a certificate from Asst. Commissioner of Customs, Chennai certifying the copies of Bills of Entry. Such attested Bills of Entry duly endorsed in favour of the appellant when sent to the jurisdictional Asst. Commissioner, Biwadi in-charge of their factory, the permission was rejected in the proceedings before the lower authorities. His submission is that cenvat credit should be allowed on the basis of the Photostat copies of the Bills of Entry. For his support, he has cited the following judgements:-
(i) CCE.& C., Vadodara-II Vs. Eupec-Welspun Pipe Coatings India Ltd. [2010 (260) ELT 381 (Guj.)
(ii) Commissioner Vs. Eupec-Welspun Pipe Coatings India Ltd. [2010 (260) ELT A83 (SC)]
(iii) CCE Vs. Matsushita Television & Audio India Ltd. [ 2015 (324) ELT 264 (All.)]
4. Ld. Departmental Representative, on the other hand, reiterates the stand taken by the authorities below. His submission is that the Customs authorities have duly attested only photo copies of the Bills of Entry. The original imports were made by M/s. Micro Lab Ltd. and it is not clear from the records whether the cenvat credit stands availed already by the importer or anyone else since the Bills of Entry with endorsement are not available on record. He accordingly prayed that the appeal merits for rejection.
5. I find that the appellant has availed the cenvat credit on the basis of Bills of Entry under which M/s. Micro Lab Ltd. (their supplier) have imported the goods. The claim of the appellant is that the cenvat credit has been availed in respect of inputs supplied by M/s. Micro Lab Ltd. The inputs were imported by M/s. Micro Lab Ltd. and in turn transferred to the appellant for manufacture of formulations. However, the appellant could not produce the relevant Bills of Entry duly endorsed in favour of the appellant. It has been submitted that after loss of the original Bills of Entry, the supplier has obtained certified photo copies of the Bills of Entry, but the same has not been accepted as proper documents for availing the cenvat credit by the authorities below. I note that the goods have been imported by M/s. Micro Labs Ltd. and obviously the Bills of Entry have been filed by them. In normal course, if the goods have reached the factory of M/s. Micro Labs Ltd. they would have been in a position to avail the cenvat credit. It is claimed that the goods covered by the Bills of Entry stand supplied to the appellant for further manufacture. This is not supported by any documentary evidence. The Customs attested copies of Bills of Entry can only be considered as proof of import by M/s. Micro Lab Ltd. There is nothing on record to rule out the fact that no cenvat credit has been taken by the original importer.
6. Rule 9(2) of the Cenvat Credit Rules, 2004 provides as follows:-
9 (2) The CENVAT credit shall not be denied on the grounds that any of the documents mentioned in sub-rule (1) does not contain all the particulars required to be contained therein under these rules, if such document contains details of payment of duty or service tax, description of the goods or taxable service, assessable value, name and address of the factory or warehouse or provider of input service:
Provided that the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of a manufacturer or provider of output service intending to take CENVAT credit, or the input service distributor distributing CENVAT credit on input service, is satisfied that the duty of excise or service tax due on the input or input service has been paid and such input or input service has actually been used or is to be used in the manufacture of final products or in providing output service, then, such Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, shall record the reasons for not denying the credit in each case. Under this sub-rule, the Dy. Commissioner has been vested with the powers to satisfy himself and allow the cenvat credit as long as the documents accompanying the inputs contained all the particulars required as per cenvat credit rules. I find that the cenvat credit in the present can be allowed only if it is established that such cenvat credits have not been availed by the supplier or anyone else on the strength of these original Bills of Entry.
7. I remand the matter to the original adjudicating authority with the direction to carry out the verification under Rule 2 of the Cenvat Credit Rules, 2004 and allow the credits after satisfying himself that the cenvat credit covered by the Bills of Entry have not been availed by M/s. Micro Lab Ltd. or any other person. In the line with the above discussion, I set aside the impugned order and remand the matter to the original adjudicating authority.
(V. Padmanabhan) Member (Technical) SSK -6-