Custom, Excise & Service Tax Tribunal
Nilesh Steel & Alloys Pvt. Ltd vs Commissioner Of Central Excise, ... on 30 October, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. APPEAL No. E/1472/10-Mum (Arising out of Order-in-Appeal No. AGS (98)59/2010 dated 3.6.2010 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad) For approval and signature: Honble Mr. S.S. Garg, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Nilesh Steel & Alloys Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Aurangabad Respondent Appearance: None for appellant Shri R.K. Maji, Assistant Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Garg, Member (Judicial) Date of Hearing: 23.10.2015 Date of Decision: 30.10.2015 ORDER NO
This appeal is directed against order-in-appeal No. AGS (98)59/2010 dated 3.6.2010 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad, vide which the appellant has been denied the cenvat credit on the xerox copy of the bill of entry.
2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of MS ingots falling under Chapter 72 of the First Schedule of the Central Excise Tariff Act, 1985 and is availing cenvat credit on inputs, capital goods, input services under Cenvat Credit Rules, 2004. The appellant had imported 212.495 MT of heavy metal scrap vide bill of entry No. 984866 dated 4.10.2005 at JNPT, Nhava Sheva, Mumbai and paid import duty vide TR-6 challan No.98623568 dated 5.10.2005. In all, there were 11 containers but 10 containers weighing 191.545 MT was released by the Customs and one container was detained by Shed Appraiser vide panchnama dated 22.10.2005. It is further realized that on account of retention of one container by Customs authorities, the original/duplicate copy of bill of entry No.984866 dated 4.10.2005 was not released and the appellant was only handed over the photocopy of the said bill of entry. The appellants efforts to get certified copy from the Customs authorities failed. Thereafter a show cause notice was issued to the appellant for taking credit of Rs.2,84,833/- on the basis of xerox copy of bill of entry in violation of Rule 9(1)(c) attracting penalty under Rule 14 and 15 of the Cenvat Credit Rules, 2004. The learned adjudicating authority vide order dated 18.2.2010 disallowed the credit availed by the appellant along with interest and imposed equal amount of penalty. Being aggrieved, the appellant filed appeal before the Commissioner (Appeals) who vide order dated 3.6.2010 upheld the decision of the adjudicating authority. Now the appellant is before this Tribunal by this appeal.
3. The counsel for the appellant has not appeared but has filed written submissions. I have heard the learned AR and perused the written submissions of the appellant.
4. The appellant has submitted in their written submissions that the impugned order being devoid of reasons has been passed in violation of the principles of natural justice inasmuch as the learned Commissioner (Appeals) has not considered the submissions of the appellant on merits as well as on limitation and consequently the impugned order is not sustainable in the eyes of law. The appellant further stated in their written submissions that they have taken credit on photocopy of bill of entry supported by TR-6 challan on which duty was paid because the original and duplicate copies of bill of entry have been retained by the department. It is further submitted that in spite of appellants several correspondences and oral requests made to the concerned Customs authorities of JNPT, Nhava Sheva, Mumbai, no original/duplicate/certified copy of bill of entry is received by the appellant till date. The appellant has also attached the correspondence letters along with written submissions. Further, the duty paid character is not in question. The appellant had imported 11 containers of heavy metal scrap vide bill of entry No. 984866 dated 4.10.2005. The customs duty including CVD element was paid vide TR-6 challan and further the material was received in the factory and was used in the manufacture of MS ingots. The Revenue is fully satisfied with the usage of imported goods and has issued end use certificate duly signed by the Range Superintendent as well as Divisional Assistant Commissioner and the same has also been submitted with the written submissions. The appellant also relied upon the following case laws in support of their contentions:-
(i) Industrial Cables (I) Ltd. vs. CCE reported in 1997 (94) ELT 379 (T);
(ii) CCE vs. Maharaja International Ltd. reported in 1998 (103) ELT 426 (T).
5. On the other hand, the learned AR submitted that as per the provisions of Rule 9(1)(c) of the Cenvat Credit Rules, 2004, xerox copy is not a proper document to avail cenvat credit. He has relied upon the following case laws in support of his contentions:-
(i) CCE, Meerut-I vs. Tayal Steel Pvt. Ltd. reported in 2012 (286) ELT 248 (T.-Del.);
(ii) CNC India Tools & Service (P) Ltd. vs. CCE, Bangalore reported in 2014 (314) ELT 221 (T.-Bang.);
(iii) CCE, Surat vs. Survoday Blending (P) Ltd. reported in 2012 (278) ELT 373 (T.-Ahmd.).
6. I have considered the rival submissions made by both the parties and have gone through the judgments cited by both the parties. After going through the judgments cited by the appellant, I am of the considered view that the case of the appellant is squarely covered by the law cited by the appellant and I am of the considered opinion that the cenvat credit availed by the appellant on the strength of xerox copy of bill of entry is available to them as it is a settled law that a substantial benefit cannot be denied on the basis of technical violations, as I have seen in this case that the original bill of entry is with the Customs authorities and they have refused to return the same to the appellant. In such situation, the appellant is not at fault for not producing the same. On careful consideration of the submissions of both the sides, I am of the opinion that the impugned order is not sustainable in law and I set aside the same by accepting the plea of the appellant. The appeal is allowed.
(Pronounced in Court on ___.10.2015) (S.S. Garg) Member (Judicial) tvu 1 6