Custom, Excise & Service Tax Tribunal
United Phosphorous Limited vs C.C.E. & Cus., Surat on 29 June, 2017
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, O-20, NMH Compound Ahmedabad Central Excise Appeal No.11045 of 2013-SM Arising out of the Order-in-Original No.27/Commr/Surat II/2013 dated 25.2.2013 passed by the Commissioner, Central Excise , Customs & Service Tax, Surat. United Phosphorous Limited .. Appellants Vs. C.C.E. & Cus., Surat .. Respondent-Revenue
Central Excise Appeal No.11812 of 20138-SM Arising out of the Order-in-Original No.27/Commr/Surat II/2013 dated 25.2.2013 passed by the Commissioner, Central Excise , Customs & Service Tax, Surat.
C.C.E. & Cus., Surat .. Appellant-Revenue Vs. United Phosphorous Limited .. Respondent-Assessee Appearance:
Present Shri Prasad Paranjape with Shri Rahul, Advocates for the Appellant-Assessee Present Shri A. Mishra, A.R. for the Revenue Coram: Honble Dr. D.M. Misra, Member (Judicial) Date of hearing:13.6.2017 Date of pronouncement:29.6.2017 Final Order No.A/11310-11311/2017 Per Dr. D.M. Misra:
Heard both sides.
2. These two appeals are filed against the Order-in-Original No. 27/Commr/Surat II/2013 dated 25.2.2013 passed by the Commissioner, Central Excise , Customs & Service Tax, Surat.
3. Briefly stated the facts of the case are that the appellant-assessee manufacturer of excisable goods had availed credit of Rs.17,30,304/- during the period November 2008 to October 2009.Alleging that credit availed on invoices which are not in accordance with the provisions of CENVAT Credit Rules, 2004 accordingly, notice was issued for recovery of the credit with intrerest and penalty. On adjudication, ld. Commissioner confirmed the demand the with interest and imposed equal amount of penalty; he dropped the demand to the extent of Rs.40,43,889/-. Aggrieved by the said confirmation of demand of 17,30,304/-, the assessee is in appeal whereas the Revenue challenged the order setting aside the demand of Rs.14,20,800/-.
4. Ld. Advocate Shri Prasad Paranjape for the Assessee submits that the ld. Commissioner has erred in denying the credit on the attested copy of bill of entry when the entire quantity of goods mentioned against the bill of entry No.193830 dated 31.5.2007 has been received and utilized in their factory for production. The bill of entry was attested by the Customs authorities as the cenvatable copy was lost/misplaced by them. He submits that credit availed on the said attested copy of Bill of Entry cannot be denied in view of various judgments viz. C.C.E. & Cus., Vadodara II vs. Steelco Gujarat Ltd. -2010 (255) ELT 518 (Guj.); Union of India vs.Hira Steels Ltd. 2011 (273) ELT 370 (Chattisgarh); Unmedica Laboratories Pvt. Ltd. vs. C.C.E., Vapi 2015 (327) ELT 192 (Tr-Ahmd.); and Balkrishna Industries Ltd. vs. C.C.E., Jaipur 2016 (335) ELT 559 (Tri-Delhi). Further, he submits that the ld. Commissioner has rightly allowed the credit of Rs.14,20,800/- which was availed by them on the dealers invoices. It is his contention that the Department has challenged the order of the ld. Commissioner on the ground that on the basis of subsequent report dated 16.5.2013, furnished by the Department whereunder few evidences have been brought on record disputing the eligibility of credit on merits, but the copy of the said report was not given to them, hence, not possible to offer comments on the same. Further, he submits that since no such report was mentioned in the show cause notice, therefore, raising the new ground on the basis of additional evidence is unsustainable in law. He further submits that the dealers invoices was in accordance with Rule 11(2) of Central Excise Rules, 2002 and not mentioning the importer/manufacturers particulars in the dealers invoices, would not make them ineligible to credit.
5. Ld. A.R. for the Revenue reiterating the findings of the ld. Commissioner with regard to denial of CENVAT credit of Rs.17,30,304/- submitted that attested copy of the bill of entry cannot be the basis and be considered as prescribed document for availing CENVAT credit. In support of the appeal of the Revenue, he has submitted that in the report of field information, after verification of invoice No.15 dated 28.4.2007, issued by the respective dealers, it is made clear that the quantity of inputs mentioned in the said invoices had not been received in the premises of the appellant, which the adjudicating authority not considered.He however fairly accepted that the copy of the report was not handed over to the Appellant. He also submits that he has no objection in remanding the case.
6 Heard both sides and perused the record. As far as credit on the attested copy of the bill of entry is concerned, I find that after the assessee lost the relevant copy of bill of entry for necessary for availing CENVAT credit, they obtained attested copy of bill of entry from the Customs authority. I find that there is no dispute on the issue of receipt of the goods mentioned under said bill of entry in the factory of the assessee and also its use, hence, considering the law settled in the judgments cited by the ld. Advocate for the appellant viz., in the cases of Steelco Gujarat Ltd. (supra); Hira Steels Ltd. (supra);Umedica Laboratories Pvt. Ltd. (supra) and Balkrishna Industries Ltd. (supra), credit availed on the duty paid as mentioned in the attested copy of Bill of Entry is admissible to them.
7. As far as Revenues appeal is concerned, it is their grievance that the ld. Commissioner (Appeals) even though called for detailed report in relation to invoice No.15 dted 28.4.2007, however, the same was not taken into consideration while passing the impugned order. Ld. A.R. for the Revenue has argued that from the report it is very clear that the assessee- appellant had not received the goods mentioned under the said invoices in their factory, accordingly, not eligible to the credit. Ld. Advocate Shri Prasad Paranjape for the appellant assessee submits that a copy of the report was never handed over to them.
8. In these circumstances, I am of the view that copy of the report be handed over to the assessee-appellant for providing an opportunity to rebut the observations in the said report and the ld. Commissioner (Appeals) should decide the issue after taking into consideration the submission of the assessee-appellant on the report furnished by the field formation relating to invoice No.15 dated 28.4.2007. Consequently, the admissibility of credit of Rs.14,20,800/- would be decided afresh. In the result, the appeal filed by the assessee bearing No.E/11045/2013 is allowed. The appeal filed by the Revenue bearing No.E/11812/2013 is also allowed by way of remand to the adjudicating authority for deciding the issue of admissibility of credit of Rs.14,20,800/- afresh.
Appeals are disposed of as above.
(Pronounced in the open Court on 29.6.2017).
(Dr. D.M. Misra) Member (Judicial) scd/ Appeal No.E/11045, 11812/2013-SM 5