Custom, Excise & Service Tax Tribunal
M/S. Ge India Industrial Pvt. Ltd vs C.C.E. New Delhi on 16 September, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. ST/510/2011-CU(DB)
[Arising out of Order-in-Appeal No. 41-ST/PKJ/CCE/ADJ/2010 dated 21.12.2010, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Honble Shri V. Padmanabhan, 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?
No
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?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. GE India Industrial Pvt. Ltd. .Applicants
Vs.
C.C.E. New Delhi .Respondent
Appearance:
Shri Tarun Jain, Advocate for the Appellants Shri Ranjan Khanna, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) Date of Hearing: 16.09.2016 FINAL ORDER NO. 54030/2016-CU(DB) Per V. Padmanabhan:
The present appeal is directed against the order dated 21.12.2010 passed by the Commissioner New Delhi. The impugned order relates to disallowance of demand of Cenvat Credit to the tune of Rs.64,85,023/- availed by the appellant. The reasons for disallowance are that the invoices based on which the Cenvat Credit has been availed are not in the name of the appellant. Some of the invoices are in the name of other divisions of the company and some others do not have the name of the company or its location. The appellant submits that they are a division of G.E. India Industrial Pvt. Ltd. Training division. Their office in Delhi houses not only the training division but also many other divisions such as Wind Division, Lighting Division, Power Control division. Some of other divisions are located in other parts of India as well. At the time of audit of their unit in May 2008 the audit officers noticed discrepancy with some of the invoices based on which Cenvat Credit was availed were not explicitly made in favour of training division at New Delhi. Subsequent to the audit, they have undertaken thorough reconciliation of the invoices and at the time of adjudication before the Commissioner, submitted a Chartered Accountants certificate evidencing utilization of the various services covered by the invoices. They are also in possession of vendor wise confirmation in respect of the invoices which they are not in a position to produce before departmental authorities from which it can be confirmed that all the services covered by various invoices have been utilized in the training division. Out of the total demand of Rs.64,85,023/- liability to the tune of Rs.9,30,920/- stands admitted.
2. We have heard Shri Tarun Jain, Advocate for the Appellants and Shri Ranjan Khanna, DR for the Respondent. We find that the appellants training division is housed along with several other divisions of the company in the same premises in New Delhi. Further, the training division has been transferred to M/s. GE India Pvt. Ltd. (appellant) w.e.f. February 2005 only. Consequently, many invoices based on which Cenvat Credit have been availed did not contain full details such as correct name of appellant. However, we find that the appellant is now in a position to satisfy the Revenue authorities about the genuineness of each and every invoice involved in the present proceedings. It is also submitted before us that such a reconciliation statement backed by a Certificate from Chartered Accountant has been produced before the Adjudicating authority. However, the same does not appear to have been considered. We find that Rule 9(2) of the Cenvat Credit Rules 2004 provides for such eventualities. The relevant Rule 9(2) is reproduced below for ready reference:
No CENVAT credit under sub-rule(1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994, as the case may be, are contained in the said document:
3. The above rule vests the jurisdictional Assistant Commissioner or Deputy Commissioner with the power to admit documents subject to verification.
4. We find that similar issues have repeatedly come up before the Tribunal. For example in the case of EUPEC-Welspun Coatings India Ltd. Vs. CCE 2009 (235) ELT 347 (T) and in the case of Idea Mobile Communications Ltd. Vs. CCE 2010(20) STR 775 (T). In the case of EUPEC-Welspun Coatings India Ltd. the Tribunal held as follows:
We have considered the submissions. We find that all the judgments cited by the ld. Advocate are very relevant and are applicable to the facts. Further, there is no dispute that the goods have been received by the appellants and the importers have directly supplied the material to the appellants and covering letters have been issued by the importers certifying / declaring that the appellants can take the credit and there is an endorsement by the Customs officer also. One of the arguments advanced by the Commissioner in support of his decision is that the document did not contain the particulars prescribed in the rules. According to him such a document has to include the central excise or service tax registration number of the person issuing the invoice, name and particulars of the factory or warehouse or premises, first or second stage dealers name and address of the consignee. On the other hand, we find that Rule 9(2) provides that credit shall not be denied o the ground that the documents does not contain all the particulars required to be contained under these rules if the document contains details of payment of duty or service tax, description of the goods, assessable value, name and address of the factory of the receiver. Further, according to proviso to Rule 9(2) the jurisdictional Asst. Commissioner can allow cenvat credit if he is satisfied that the duty has been paid and goods have been actually used.
It is seen that in this case all these details except name and address of the factory on the bill of entry. The only omission is that instead of endorsing the bill of entry itself in the name of the assessee, the importer has issued separate certificate / declaration. It has to be seen in as part of the bill of entry and both of them cannot be segregated and seen in isolation as done by the Department. It is quite clear that the credit has to be allowed in view of the provision of Rule 9(2) in this case. Therefore, appeal is allowed with consequential relief to the appellants.
5. The above decision has referred to a situation identical to the present one and we find no reason to take a different view. The matter needs to be remanded to the original adjudicating authority for undertaking verification of the reconciliation chart along with supporting documents which the appellant is presently in a position to submit. The appellant is directed to produce all necessary details and facilitate quick and smooth verification of the same, after which the original adjudicating authority will pass a denovo order in the matter.
6. The impugned order also imposed penalty of Rs.1000/- under section 77 of the Finance Act 1994. Under the facts and circumstances of this case we find no justification for imposing such penalty and is hence vacated.
7. Appeal is allowed by way of remand.
[Dictated and Pronounced in the open Court]
(V. Padmanabhan) (Archana Wadhwa)
Member (Technical) Member (Judicial)
Bhanu
5
ST/510/2011-CU(DB)