Custom, Excise & Service Tax Tribunal
M/S. International Tobacco Co. Ltd vs Cce, Ghaziabad on 10 May, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066 COURT NO. II Central Excise appeal No. 6246/2004 [Arising out of Order-in-Appeal No. 161/CE/GZB/04 dated 29.11.204 passed by the Commissioner (Appeals), Ghaziabad] M/s. International Tobacco Co. Ltd., Appellant Versus CCE, Ghaziabad Respondent
Central Excise appeal No. 944/2007 [Arising out of Order-in-Appeal No. 213-CE/GZB/2006 dated 29.12.2006 passed by the Commissioner (Appeals), Ghaziabad] CCE, Ghaziabad Appellant Versus M/s. International Tobacco Co. Ltd., Respondent Present for the Assessee : Shri Ashok Sagar,Advocate Present for the Revenue : Shri N. Pathak, A.R. Date of hearing/decision:10/05/2013 Coram: Honble Shri D.N. Panda, Judicial Member Honble Shri Rakesh Kumar, Technical Member FINAL ORDER NO. 56430-56431/2013 Per D.N. Panda Although voluminous paper book is filed in appeal No. 6246/2004, when we proceeded for hearing we find that the dispute being limited to verification of facts and law, we proceeded straight way with the chart showing the disputes in table filed by learned Counsel. Those disputes are listed as item No. 1, 2, 3, 6, 8, 9, & 10 in the table which is depicted below:-
Sl.
No. Paragraph No.s Amount demanded Status
1. 1.1 to 1.3 Rs. 90,075.70 Confirmed credit disallowed
2.
2.1 to 2.2 Rs. 5,825.40 Confirmed credit disallowed
3. 3.1 to 3.4 Rs. 6,152.00 Confirmed credit disallowed
4. 4.1 to 4.4 Rs. 2,38, 403.59 Demand Dropped Credit allowed
5. 5.1 to 5.3 Rs. 8,623.00 Demand dropped Credit allowed
6. 6.1 to 6.4 Rs. 4,966.44 Confirmed credit disallowed
7.
7.1 to 7.5 Rs. 1,817.00 Demand Dropped Credit allowed 8. 8.1 to 8.3 Rs. 24,16,214.00 Confirmed credit disallowed 9. 9.1 to 9.5 Rs. 14,39,491.00 Confirmed credit disallowed 10. 10.1 to 10.5 Rs. 4,53,805.00 Rs. 15,598.00 Confirmed credit disallowed 11. 11.1 to 11.4 Rs. 53,01,719.00 Demand dropped Credit allowed 12. 12.1 to 12.5 Rs. 7,72,510.00 Demand dropped Credit allowed
In view of the above, the disputes fall in four categories.
2. The first category relates to dispute in Srl. No. 1,2,3 & 6 of the table above. That relate to eligibility of Modvat/Cenvat credit on the inputs lying in go-down of the appellant as on 1.3.2000. Learned Counsel says that those goods (inputs) were awaiting use in the manufacture and Modvat credit thereon is admissible upon use only for which declaration relating to the goods lying in godown as on 1.3.2000 was not filed that not being necessity of law. Department denies Modvat credit in respect of such goods (inputs) covered by the dispute in Srl. No. 1,2,3 & 6 of the table lying in godown.
3. Against above proposition, it is submission of the Revenue that the appellant has taken credit on the input lying in go-down as is appreciable from Para 1.2 & 1.3 of the show cause notice. When the credit was taken in respect of the goods not lying in the factory covered by dispute 1,2,3 & 6 of the table above, that was disallowed.
4. In the course of hearing it came to notice that the Authority below has not verified whether the inputs lying in the godown as on 1.3.2000 covered by Modvatable invoices and verifiable from record. It is certain that inputs upon use only allow Modvat credit. Only upon verification granting proper opportunity to the appellant to extend cooperation for the verification, the dispute can be resolved. Therefore, the appellant shall make an application to the learned Adjudicating Authority within 3 months of receipt of this order and pray for fixation of a date to cooperate with the authorities for verification. Upon verification appropriate order shall be passed.
5. Second dispute relates to item No. 8 of the table above and relates to the capital goods belonging to Godfrey Philips sent to the appellant for installation and use in the manufacture of goods of Godfrey Philips. Appellants submission is that entire transaction from the date of import till installation is substantiated from the bill of entry and installation record. There was no Modvat credit taken on such capital goods by Godfrey Philips. Therefore, disallowance of capital goods credit to the appellant is unjustified.
6. To the above proposition, Revenue says that such aspect was remanded by the Tribunal in the past to examine whether endorsement of bill of entry not countersigned by Customs Officer shall be a proper endorsement.
7. When both parties are in dispute on the authentication of endorsement but not in dispute in relation to genuineness of the transfer from Godfrey Philips to the appellant. This can be resolved by verification of the signature of the officer who countersigned the documents. Revenue confirms that there is genuinity of the counter signature by an officer but not countersigned by Customs Officer. Once the fact of countersigning by a departmental officer comes to record the appellant cannot be disentitled to the capital goods credit. Therefore, the appellant succeeds in its appeal on the dispute at serial number 8 of the table above.
8. Dispute relating to item No. 9 relates to the issue whether input credit shall be admissible to the appellant on the invoices of Godfrey Philips not registered at the time of issuance of invoices. Law being very clear that only registered assessee can issue cenvatable invoice to entitle the buyer to the input credit, the appellant fails to succeed on this count due to unregistered status of Godfray Philips came to record. Accordingly, demand on dispute relating to item No. 9 of the Table sustains.
9. The dispute relating to item No. 10 of the table relates to input lying in the factory directed for verification by learned Commissioner (Appeals). But verification result was not considered by that appellate authority nor confronted by him to the appellant while disposing appeal before him. If the appellate authority fails to consider the verification result, appellant should not suffer. Accordingly, on this limited aspect for confrontation and consideration of verification result, the dispute in serial no. 10 of the table above is remanded to the learned Commissioner (Appeals) to pass appropriate order upon consideration of verification result getting reply of appellant against confrontation of such report. We hope, learned Commissioner (Appeals) shall not delay to dispose the matter within 3 months of receipt of this order.
10. We hope, the assessee and the Authorities above shall cooperate with each other to reduce the dispute at their level passing appropriate order within the time schedule.
10. In the result, appeal is disposed in the manner indicated above.
11. Revenues appeal No. E/944/207 is dismissed in view of the result of appeal of the assessee touching the dispute in item No. 8 of the Table referred above.
(Dictated & pronounced in the Open Court.)
(RAKESH KUMAR) (D.N. PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
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E/6246/04 & 944/07