Custom, Excise & Service Tax Tribunal
Joya Engineering Industries vs Kolkata North Commissionerate on 5 June, 2023
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.2
Excise Appeal No.76425 of 2019
(Arising out of Order-in-Appeal No.26/Kol-North/Kol/19 dated 17.01.2019 passed by
Commissioner (Appeals) of CGST & Excise, Kolkata)
M/s Joya Engineering Industries
50, Beharilal Ghosh Road, Kolkata-700057
Appellant
VERSUS
Commissioner of CGST & Excise, Kolkata North
180, Shantipally, Rajdanga Main Road, Kolkata-700107
Respondent
APPERANCE :
Shri N.K.Chowdhury, Advocate for the Appellant Shri P.K.Ghosh, Authorized Representative for the Respondent CORAM:
HON'BLE MR.ASHOK JINDAL, MEMBER (JUDICIAL) FINAL ORDER NO...75540/2023 DATE OF HEARING : 05.06.2023 DATE OF DECISION : 05.06.2023 Per Ashok Jindal :
The appellant is in appeal against the impugned order where the cenvat credit has been denied to them on the premises that the appellant is not entitled to take the cenvat credit on the invoices issued by the second stage dealer, where the appellant is not a buyer and is only a consignor.
2. The facts of the case are that the appellants procured the certain inputs, which were manufactured by Shree Parasnath Rerolling Mills Ltd., Durgapur through Bansal Industrial Corportation, the buyer of the goods, who in turn, purchased the goods through Roshsanlal Bhagirathmal, Kolkata, the second stage dealer and the appellant is a 2 Ex..Appeal No.76425/19 consignee. The impugned goods were sold by Roshsanlal Bhagirathmal to Bansal Industrial Corporation. The appellant took credit on the said goods.
2.1. Revenue is of the view that Roshsanlal Bhagirathmal, second stage dealer, has sold the goods to Bansal Industrial Corporation, accordingly, the buyer of the goods is entitled to take the cenvat credit on such goods, not the appellant being a consignee. 2.2. Therefore, the proceedings were initiated against the appellant and cenvat credit was denied.
2.3. Against the said order, the appellant is before me.
3. Heard the parties and considered the submissions and perused the record.
4. I find that the present issue is squarely covered by the decision of the Tribunal in the case of M/s S.S.Engineering Works Vs. Commissioner of CGST & Excise, Kolkata South vide Final Order No.75175/2023 dated 24.03.2023, wherein this Tribunal has observed as under :
"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.3 Ex..Appeal No.76425/19
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 Excise Appeal No. 79200 of 2018 3 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 4 Ex..Appeal No.76425/19 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."
5. As the issue is covered by the decision of the above cited case, therefore, I allow the cenvat credit to the appellant. Therefore, I do not find any merit in the impugned order and the same is set aside.
6. In the result, the appeal is allowed with consequential relief, if any.
(Dictated and pronounced in the open court) Sd/-
(Ashok Jindal) Member (Judicial) mm