Custom, Excise & Service Tax Tribunal
Mrf Ltd vs Ltu Chennai on 4 July, 2024
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
CHENNAI
REGIONAL BENCH - COURT No. III
Excise Appeal Nos.40937 to 40939 of 2015
(Arising out of Order-in-Appeal No.164,165 & 166/2014 dated 04.02.2015 passed by
Commissioner of Central Excise, LTU, Chennai)
MRF Ltd., ..... Appellant
No.124, Greams Road,
Chennai - 600 006.
VERSUS
The Commissioner of CGST & Central Excise ...Respondent
Chennai North Commissionerate No.26/1, Mahathma Gandhi Road, Nungambakkam, Chennai 600 034.
APPEARANCE :
Shri. Karthick Sundaram, Advocate, for the Appellant Shri. M. Ambe, Authorised Representative for the Respondent CORAM :
HON'BLE MS. SULEKHA BEEVI.C.S., MEMBER (JUDICIAL) HON'BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) FINAL ORDER No.40796-40798/2024 DATE OF HEARING : 01.07.2024 DATE OF DECISION : 04.07.2024 Per Ms. Sulekha Beevi. C.S The issue involved in all these appeals being the same they were heard together and are disposed of by this common order.
2. Brief facts are that the appellant imported goods and discharged appropriate duties as per the Bills of Entry filed. During the transit of the goods from Chennai to their factories at Medak, Arokanam, the driver misplaced the original Bills of Entry. The appellant could not avail credit 2 of the import duties as the original documents were lost. They lodged a police complaint. A Certificate was issued by the Inspector of Police (Crime), Chennai stating that the documents were not traceable. They also obtained certificates of import on the basis of attested copy of the Bills of Entry duly issued by the Customs Authorities. The appellant requested permission to avail credit on the strength of such documents. However, the department denied their request to avail credit alleging that the original Bills of Entry are not furnished.
1.1 Against such decision, the appellant preferred appeal before the Commissioner (Appeals) who upheld the same. Hence this appeal.
2. The learned counsel Shri Karthik Sundaram appeared and argued for the appellant. It is submitted that the original documents were lost during transit and appellant had then lodged a police complaint. A certificate has been issued by the Inspector of Police that the documents are not traceable. The appellant also submitted the certificate of import from the Customs Department along with photocopies of Bills of Entry. However, the credit has been denied alleging that the appellant cannot avail credit without furnishing the original Bills of Entry. 2.1 The decision in the case of M/s. Shasun Chemicals and Drugs Ltd. Vs. CESTAT - 2018 GSTL 39 (Mad.) was relied. It is prayed that the appeals may be allowed.
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3. The learned AR Shri M. Ambe, appeared and argued for the department. The findings in the impugned order were reiterated. The decision of the Hon'ble Supreme Court in the case of Smt. J. Yashoda Vs. K. Shobha Rani in Civil Appeal No. 2060/2007 dated 19.4.2007 was relied. It is submitted that in the said decision, it was held that mere photocopies cannot be received and marked as secondary evidence. The decision in the case of M/s. S.K. Foils Ltd. Vs. Commissioner - 2010 (252) ELT A100 (SC) was also relied.
4. Heard both sides.
5. The issue to be considered is whether the appellant is eligible to avail credit in the absence of original Bills of Entry. The appellant has lodged a complaint soon after the loss of documents. A certificate has been issued by the Inspector of Police that the documents are not traceable. Apart from this, the appellant has approached the Customs authorities and submitted the photocopies of the Bills of Entry requesting to issue certificate of import of goods. The Customs Department has issued a certificate giving the details of the goods imported, the value of goods and duty paid by them. Sample of such certificate is as under:-
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5.1 Rule 9 of CENVAT Credit Rules 2004 provides for the documents on which credit can be availed. The Proviso to sub-rule (2) of Rule 9 5 states that if the document does not contain full particulars, the Deputy Commissioner or Assistant Commissioner may cause verification and if satisfied, allow the credit.
5.2 In the present case, there is no dispute that goods have been imported and received at the factory of the appellant. So also there is no dispute that the duty has been paid. The photocopies of the Bills of Entry are supported by certificate issued by Inspector of Police for loss of original as well as certificate issued by customs authorities for payment of duty. It is not a case of availment of credit on mere photocopies. The decision in the case of S.K. Foils (supra) is therefore distinguishable and not applicable to the facts of this case.
5.3 The Ld. AR has also relied upon the decision in the case of Smt. J.
Yashoda Vs. Smt. K. Shobha Rani on 19 April 2007. Needless to say, that the said case emanates from Civil dispute where the trial is conducted strictly as per Civil Procedure Code and Indian Evidence Act. Such judicial proceedings are tied up with strict procedural compliances. The proceedings before the adjudicating authority is quasi-judicial, and for this reason the said decision is of no assistance to the Revenue. 5.4 In the case of M/s Shasun Chemicals & Drugs Ltd., (supra) the jurisdictional High Court held that credit can be allowed on certified copy of the Bill of Entry. The relevant para reads as under:- 6
Cenvat/Modvat credit -- Duty paying documents -- Attested certified copy of Triplicate copy of Bill of Entry is valid duty paying document for availing credit The Madras High Court Bench comprising Hon'ble Mr. Justice Rajiv Shakdher and Hon'ble Mr. Justice R. Suresh Kumar on 15-11-2017 allowed the Civil Miscellaneous Appeal No. 2545 of 2011 filed by Shasun Chemicals and Drugs Ltd. (Respondent being CEGAT, Chennai) against the CESTAT Final Order Nos. 535- 536/2001, dated 15-3-2001 (Commissioner v. Shasun Chemicals and Drugs Ltd.).
As per facts of the case, assessee, a manufacturer of Drugs had imported raw material and availed Modvat credit of CVD paid on import. After receipt of goods in factory, Triplicate copy of B/E was sent to Headoffice and same was lost in transit. Therefore no copy could be enclosed with monthly return. The assessee, thereafter procured attested certified copy of B/E and on demand by Central Excise officers submitted same. Credit was denied to assessee on the ground that original Triplicate copy of B/E was not produced. The Madras High Court, after hearing the Representatives of the Parties, held that there was no dispute that duty paid raw material was received in the factory and used for the manufacture of finished goods which were further subjected to Central Excise Duty. It is also not disputed that original Triplicate copy of bill of entry was first received in the factory and it was only on that basis that credit was taken by making suitable entries in RG23AI and II. Accordingly question was whether the production of attested/certified photocopy of the triplicate Bill of Entry can be treated as a valid document for the purpose of allowing the Modvat credit to the assessee. The assessee relied on the judgment of a Division Bench of Allahabad High Court reported in 2015 (324) E.L.T. 264 (All.) wherein in similar circumstances of loss of original Triplicate copy of Bill of Entry, credit was allowed on the basis of Exchange Control Copy of the Bill of Entry procured from the Bank. High Court held that on same analogy a certified copy of Bill of entry issued by Customs Authorities which has been verified by Excise officers, is a proper and valid duty paying document for availing credit. The High Court also relied on judgments of Madhya Pradesh High Court in 2002 (140) E.L.T. 370 (M.P.) and in 2009 (241) E.L.T. 31 (M.P.) and settled proposition of law that a substantive benefit cannot be disallowed by procedural infirmities. It was held that Rule 57G of erstwhile Central Excise Rules was only procedural and if at all there is any lacuna on the part of the assessee in complying with these procedural requirements of filing documents that would not affect the substantive right of the assessee to claim Modvat credit. The High Court distinguished facts of cases relied by Revenue in this regard.
[Shasun Chemicals and Drugs Ltd. v. CESTAT - 2018 (11) G.S.T.L. J39 (Mad.)] 7 5.5 From the facts above, and following the decision of the jurisdictional High Court, we hold that disallowing the credit alleging that original documents have not been produced is too harsh on the assessee and would result in denying substantive benefit of credit. We hold that appellant is eligible for credit.
6. In the result, the impugned orders are set aside. The appeals are allowed with consequential reliefs, if any.
(Order pronounced in the open court on 04.07.2024) (VASA SESHAGIRI RAO) (SULEKHA BEEVI C S) Member (Technical) Member (Judicial) psd