Custom, Excise & Service Tax Tribunal
Cce, Gurgaon vs M/S Botil Oil Tools India Pvt. Ltd on 10 November, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi COURT-IV Date of hearing/decision: 10.11.2010 Excise Appeal No. 2596 of 2008-SM [Arising out of Order-in-Appeal No. 208/ANS/GGN/2008 dated 16.9.2008 passed by the Commissioner of Central Excise (Appeals), Gurgaon] For approval and signature: Honble Mrs. Archana Wadhwa, Member (Judicial) 1. Whether Press Reporters may be allowed to see 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 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? CCE, Gurgaon Appellant Vs. M/s Botil Oil Tools India Pvt. Ltd. Respondent
Appearance:
Appeared for the Appellant Shri Anil Khanna, SDR
Appeared for the Respondent - Shri D.N. Malhotra, Advocate
Coram: Honble Mrs. Archana Wadhwa, Member (Judicial)
Order No.___________________________
Per Archana Wadhwa:
Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal.
2. I have heard Shri Anil Khanna, ld. DR appearing for Revenue and Shri D.N. Malhotra, ld. Advocate appearing for respondent.
3. Briefly state, the facts of the case are that the appellant is engaged in the manufacture of Oilfield equipments falling under chapter sub-heading 848590 of the 1st Schedule to the Central Excise Tariff Act, 1985. They are availing credit of duty and of service tax paid by them on the inputs and the input service used by them on the inputs and the input service used by them in or in relation to the manufacture of final products under Cenvat Credit Rules, 2004. During the course of audit of records of the party by the Central Excise officers it was observed that during the year 2004-05 and 2005-06 (upto 15.6.2005) they had wrongly taken CENVAT credit of Rs.23,266/- of the service tax paid on the inward freight on the strength of TR-6 challans which were not valid documents as prescribed under Rule 9(1) of the Cenvat Credit Rules, 2004 during the said period. Moreover, the TR-6 challans on the strength of which the appellant availed credit did not contain the requisite details as prescribed under Rule 4A(1) of the Service Tax Rules, 1994 and therefore were invalid documents for the purpose of taking credit as per Rule 9(1) of the Cenvat Credit Rules, 2004. Accordingly, the appellant was issued a show cause notice vide C.No. CE-20/R-XIII/Demand/Botil Oil/75/07/11309 dated 28.9.2007.
4. The said Show Cause Notice culminated into an order passed by the Commissioner (Appeals) confirming demand of duty of Rs.23,266/- by denying the Cenvat credit so availed by the assessee along with confirmation of interest and imposition of penalty of identical amount. On appeal against the above order, the Commissioner (Appeals) set aside the same by following the Tribunal decisions, as detailed in para 8, 9 and 10 of his order. For better appreciation, the relevant paragraphs are re-produced as under :-
The Honble Tribunal in Order Nos. A-1358 to 1361/2007/WZB/C-IV(SMB) dated 5.9.2007 [2007 (8) STR 609 (Tri.-Mum.) in the case of CCE Goa Vs. ESSEL Pro Pack Ltd. has held as under :-
I agree with the reason adopted by the Commissioner (Appeals). The Revenue in their appeal has nowhere contended as to what was the specified document for availing credit during the relevant time. If no document was mentioned, TR-6 challan has to be considered as the proper document reflecting payment of duties. Further, it is also not the Revenues case that the service tax was not paid by the Respondents or they were otherwise not entitled to the credit of the same. Going by the ratio of the above judgement, the Honble Mumbai Tribunal in the case of CCE Goa Vs. Crompton Greaves Ltd. reported in 2008 (226) ELT 117 (Tri.-Mumbai) dismissed the Revenues appeal holding that TR-6 challan was a valid document for availing credit during the impugned period.
As regards, non mentioning of requisite details on the challan, I observe that as per provisions of Rule 9(2), Cenvat Credit shall not be disallowed on the grounds that any of the documents mentioned in sub rule (1) did not contain all the particulars, if such documents contain the basic details like details of Service Tax, assessable value, name and address of the factory and the like. Further, the Asstt. Commissioner in the Show Cause Notice has not alleged that the goods or services covered by the said documents have not been received and accounted for in the books of the appellant.
5. Revenue in their memo of appeal has reiterated the same very grounds which were adopted by the original adjudicating authority for denial of credit. It stands no where contended by the Revenue in their appeal memo that the Tribunals decisions relied upon by Commissioner (Appeals) are not applicable to the facts of the instant case. The law having been declared by the Tribunal stands rightly followed by Commissioner (A). Accordingly, no infirmity is found in the order of the appellate authority. The Revenue appeal is thus dismissed.
(Pronounced in Court) (ARCHANA WADHWA) MEMBER (JUDICIAL) RM