Custom, Excise & Service Tax Tribunal
M/S.Diamond Cements vs Cce, Bhopal on 26 March, 2013
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:26/03/2013
For approval and signature:
Honble Shri Rakesh Kumar, Member (Technical)
1. Whether Press Reporters may be allowed to see the order for
Publication under Rule 27 of the CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
In Appeal No.E/1183/2011-EX (SM)
(Arising out of Order-in-Appeal No.24/BPL/2011 dated 02.02.2011 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Bhopal (M.P.)]
M/s.Diamond Cements Appellant
Vs.
CCE, Bhopal Respondent
Appearance:
Rep. by Shri Ganesh Bapu, Advocate for the appellant.
Rep. by Shri Bharat Bhushan Sharma, AR for the respondent.
Coram: Honble Shri Rakesh Kumar, Member (Technical) Final No.55951/2013 dated 26.03.2013 Per Rakesh Kumar:
The only point of dispute in this case is as to whether debit notes issued by the service providers are valid documents for availing cenvat credit. There is no dispute that the debit notes issued by the service providers on the basis of which cenvat credit has been availed, contain the information viz. the service providers name and address, service tax registration no., nature of the service provided, value of the service, service tax paid, etc and as such, all the information which is required in the invoices is there in the debit notes. The department being of the view that the debit notes are not the valid documents prescribed in Rule 9 of the Cenvat Credit Rules, initiated proceedings for denial of the cenvat credit taken on the basis of debit notes. These proceedings resulted in issue of an order-in-original dated 19.10.2010 by the Asstt. Commissioner by which he confirmed cenvat credit demand of Rs.4,22,324/- along with interest and imposed penalty on the appellant under Rule 15 of the Cenvat Credit Rules, 2004. This order of the Asstt. Commissioner was upheld bythe Commissioner (Appeals) vide order-in-appeal dated 31.1.2011 against which this appeal has been filed.
2. Heard both sides.
3. Shri Ganesh Bapu, ld. Advocate for the appellant pleaded that the debit notes issued by the services providers on the basis of which the cenvat credit was taken by the appellant, contained all the information which is required to be mentioned in the invoices, inasmuch as the debit notes contained the service providers name and address, service tax registration no., nature of the service provided, value of the service, service tax paid, etc. that in view of this, the debit notes have to be treated as valid duty paying documents for availment of cenvat credit, that the Tribunal in a series of decisions in cases of Pharmalab Process Equipments Pvt. Ltd. Vs. CCE, Ahmedabad reported in 2009 (16) STR 94; CCE, Salem Vs. M/s. Pallipalayam Spinners (P) Ltd. reported in 2010-TIOL-1723-CESTAT-MAD; Chemplast Sanmar Ltd. Vs. CCE, Salem reported in 2010 (17) STR 253 (Tribunal-Chennai) and M/s. The Supreme Industries Ltd. Vs. CCE, LTU, Mumbai reported in 2011 TIOL-1213-CESTAT-MUM has held that cenvat credit can be availed on the basis of debit notes if the same contain all the information, which is required to be mentioned in the invoices and that in view of this, the impugned order upholding the cenvat credit demand along with interest and imposition of penalty is not sustainable.
4. Shri B.B.Sharma, ld. DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and relied upon the judgement of the Tribunal in the case of Godrej Consumer Products Ltd. reported in 2010 (20)STR 609 (Tribunal-Delhi), wherein it was held that debit note is not a valid duty paying documents for taking cenvat credit.
5. I have carefully considered the submissions from both the sides and perused the records. The only point of dispute in this case is as to whether debit notes on the basis of which cenvat credit has been availed are valid duty paying documents for this purpose. On going through the debit notes placed on record, I find that the same contain all the information , which is required to be mentioned in the invoices. I also find that other Benches of the Tribunal in a series of judgements, as mentioned above, have held that debit notes are valid documents for availing cenvat credit, if the same contained all the information which is required to be mentioned in the invoices. Same view has been taken by the Tribunal in cases of Missonpharma Logistics (I) P. Ltd. reported in 2012 (27) STR 60, CCE, Indore Vs. Gwalior Chemical Industries Ltd. reported in 2011 (274) ELT 97 and CCE, Nasik Vs. Graphite (I) Ltd. reported in 2006 TIOL-1531-CESTAT-Mum. Since in this case, the debit notes contained all the required information, the same have to be treated as valid duty paying documents for availing cenvat credit. Though the ld. DR has cited the judgement of the Tribunal in the case of Godrej Consumer Products (supra), the same is a Single Member Judgement and does not consider a series of judgements of the Coordinate Benches where a contrary view has been taken.
6. In view of the above discussion, the impugned order is not sustainable. The same is set aside. The appeal is allowed.
(Rakesh Kumar ) Member (Technical) Ckp.
(Rakesh Kumar ) Member (Technical) Ckp.
(Rakesh Kumar ) Member (Technical) Ckp.
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