Custom, Excise & Service Tax Tribunal
Keva Fragrances P. Ltd vs Cce Mumbai Iii on 23 October, 2017
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
E/86024/17
(Arising out Order-in- Appeal No. PK/103/M-III/2017 dated 05.04.2017 passed by the Commissioner of Central Excise (A), Mumbai II)
For approval and signature:
Honble Shri Raju, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Seen
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Keva Fragrances P. Ltd.
Appellant
Vs.
CCE Mumbai III
Respondent
Appearance:
Shri Yogesh S. Patki, Advocate for the appellant Shri D.S. Chauhan, Supdt. (AR) for the respondent CORAM:
Honble Shri Raju, Member (Technical) Date of hearing : 29.09.2017 Date of decision : 23.10.2017 O R D E R No: ..
Per: Raju This appeal has been filed by Keva Fragrances P. Ltd. against denial of refund of cenvat credit under Rule 5 of the Cenvat Credit Rules.
2. Ld. Counsel for the appellants argued that they are a 100% EOU and are involved in export of goods. He argued that they had filed refund claim under Rule 5 of the Cenvat Credit Rules and part of the refund claim was rejected on the following grounds:-
i) They had availed credit on the strength of photocopy of the invoice and the original and duplicate were not produced. They had not followed the procedure prescribed by trade notice for availing credit in such circumstances.
ii) They had taken credit of certain amount on 30th June, whereas the invoice was raised on 1st of July.
3. Ld. Counsel argued that both the issue relates to denial of cenvat credit and no show-cause notice under Rule 14 of the Cenvat Credit Rules has been issued. He argued that the proceedings relating to refund under Rule 5 of the Cenvat Credit Rules availment of cenvat credit cannot be questioned. He further argued that cenvat credit cannot be denied on the strength of procedure prescribed by the trade notice so long as their claim is covered under Cenvat Credit Rules.
4. Ld. AR relies on the impugned order. He also stated various case laws wherein it has been held that credit cannot be availed on Xerox copy of documents.
5. I have gone through rival submissions. I find that the proceedings in the impugned case are relating to refund of accumulated cenvat credit. The impugned proceedings seek to deny the cenvat credit availed by the appellants on the grounds that the credit was availed on photocopy of invoices or that credit was availed even before the invoice was issued. To deny cenvat credit, Cenvat Credit Rules prescribes a procedure where show-cause notice is required to be issued. Without issue of notice it is not open to revenue to deny cenvat credit in proceedings relating to refund under Rule 5 of Cenvat Credit Rules. Since no notice has been issued seeking reversal of the cenvat credit which is allegedly wrongly claimed. The revenue has no option but to process the refund under Rule 5 treating the same as a valid cenvat credit.
6. In view of above, the impugned order is set aside and the appeal is allowed.
(Pronounced in Court on ..............................) (Raju) Member (Technical) //SR
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E/86024/17