Custom, Excise & Service Tax Tribunal
M/S. Tata Motors Ltd vs Commr.Of Central Excise, Jsr on 12 July, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Excise Appeal No. 116/2007
(Arising out of the Order-in-Appeal No. 157/JSR/CEX/APPEALS/2006 dated-20/09/2006 passed by the Commissioner of Central Excise (Appeals), Patna)
SHRI D.N. PANDA, HONBLE JUDICIAL MEMBER
SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER
M/s. Tata Motors Ltd.
APPELLANT(S)
VERSUS
Commr.of Central Excise, JSR
RESPONDENT(S)
APPEARANCE Sri R. Raghavan, Advocate & Miss S. Chatterjee, Advocate FOR APPELLANT(S) Sri A. Roy, Supdt. (A.R.) FOR THE RESPONDENT(S) CORAM:
SHRI D.N. PANDA, HONBLE JUDICIAL MEMBER SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER DATE OF HEARING & DECISION: 11/07/2016 FINAL ORDER NO. FO/A/75546/2016 Per SHRI D.N. PANDA Ld. Counsel says that there are two demands involved in this appeal. Substantial demand of Rs.10,60,556/- relates to the dispute on limitation in respect of return of goods on which Modvat credit was taken and reversed on return thereof for removal of defect and again such credit taken upon receipt of the goods on removal of the said defect. Revenue raised dispute on taking of such credit subsequently on the ground that the same was not taken within 6 months of receipt of the goods originally and reference to earlier document was made. Further, according to Revenue, allegation is that limitation of 6 months shall be counted from the date of original invoice but not from the date of the subsequent invoice issued upon removal of defects in the goods. Appellant explained that the alleged disallowances are covered by the ANNEXUREC to the show cause notice at page 22 of the appeal folder.
2. Appellant submits that it had proved that they have taken credit properly on genuine invoices at the time of receipt of the goods and subsequently credit was taken on appropriate duty paid invoices consequent upon rectification of the goods that came back to the appellant from the suppliers. The Modvat credit taken thereon is as per ANNEXURE C above. Genuineness of the documents is not questioned by Revenue. Nor the claim of Modvat credit remained in dispute. But the only question raised by Revenue is that the limitation of 6 months period to take credit on subsequent invoice has to be reckoned from the date of original invoice and not from the subsequent invoice date. But such proposition of Revenue is contrary to law.
3. The second demand of Rs.2,09,698.27 relates to the cases covered by page 36 of the paper book at ANNEXURE G to the SCN. In respect of each of the invoices, technical defects have been raised by Revenue although the defects were curable and the appellant has done so as well as explained. There is no substantial reason for denial of the credit.
4. With the aforesaid submission, appellants prayer is to allow the appeal granting credit on both counts.
5. So far as the first count of demand is concerned, Revenue contradicts submissions of the appellant on the ground that there was no proper reference to the document to entertain claim of the appellant. On the second count of demand, it is explained by the Revenue that the defects pointed out are genuine as is apparent from page 36 of the paper book. These are substantial in nature for which the appellant should not get any relief.
6. Heard both sides and perused the records.
7. So far as the first count of demand is concerned, it does not appeal to common sense how the genuine credit available should be denied when appellant shows that every claim was within six months of receipt of subsequent invoice and scheme of modvat is that credit is allowable when the goods are received in the factory. When claim of Rs.42034.00 appearing at page 22 of the appeal folder was test checked by the Bench and Revenue was asked to demonstrate its contention of time bar of claims made beyond 6 months of receipt of subsequent invoice, Revenue failed to do. The test case reveals that the original invoice was dated 12/3/1998 when accompanied the goods. Credit was taken on that basis. When goods covered by that invoice was subsequently returned back to the supplier, the credit taken was reversed. Revenue has no difference to this. So also it did not dispute on the subsequent duty paying documents dated 30th September, 1998 when came alongwith subsequent supply of the goods upon rectification. On the basis of that document, the appellant claimed credit on 21.10.1998 which is within a period of 6 months of receipt of the goods subsequent to rectification. The credit so claimed remained undisputed when that was made on genuine transaction backed by genuine invoice.
8. In view of the above factual finding the appellant succeeds in the first count of demand.
9. So far as the second count of the demand is concerned, we do not find that defects were incurable and appellant has not cured such defects. Demand involved is Rs.2,09,698.27. These defects as per appellant were rectified and the claim of the credit thereof is undeniable because those were genuine. Law is well settled that technicalities shall not be bar against substantive justice. The rules and procedures are sub-ordinate to the basic legislation. It is settled principle of law as has been held in the case of Sambhaji Vs. Gangabai reported in 2009 (240) ELT 161 (SC) that rules and procedures are servant of law but should not be tyrant.
10. With the aforesaid observation the appellant also succeeds in the second count of the demand because appeal of 2007 is considered to be unproductive to remand considering small quantum of demand involved.
11. Appeal is thus allowed.Consequential relief, if any, shall follow in accordance with law.
(Dictated and pronounced in the open court)
Sd/- 13/7/16 ` Sd/- 13/7/16
(H.K. THAKUR) (D.N. PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
k.b/-
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