Custom, Excise & Service Tax Tribunal
M/S Ntf (India) Pvt. Ltd vs C.C.E., Delhi Iii on 8 April, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-III Date of hearing/decision: 8.4.2010 For Approval and Signature: Honble Shri M. Veeraiyan, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? Yes 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? yes 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Central Excise Appeal No.3047 of 2007-SM Arising out of the order in appeal No.423/KKG/GGN/2007 dated 17.9.2007 passed by the Commissioner(Appeals ), Central Excise, Delhi III, Gurgaon. M/s NTF (India) Pvt. Ltd. Appellant Vs. C.C.E., Delhi III Respondent
Central Excise Appeal No.3153 of 2007-SM with Cross-Objection No.E/194 of 2008-SM Arising out of the order in appeal No.423/KKG/GGN/2007 dated 17.9.2007 passed by the Commissioner(Appeals ), Central Excise, Gurgaon.
C.C.E., Delhi III . Appellant vs. M/s NTF (India) Pvt. Ltd. . Respondent Appearance: Shri S.K. Gaur, Advocate for the assessee
Shri S.N. Srivastava , Authorized Departmental Representative (SDR) for the Revenue Coram: Honble Shri M. Veeraiyan, Member (Technical) Oral Order No.____________________ Per M. Veeraiyan:
Appeal No.E/3047/07 is by the party against the order of Commissioner (Appeals) No. 423/KKG/GGN/2007 dated 17.9.2007. Appeal No.E/3153/07 is by the Department against the same order of the Commissioner (Appeals). Cross-Objection No.E/194/08 is by the party connected to the appeal filed by the Department.
2. Heard both sides.
3. The relevant facts, in brief, are that the assessee is a manufacturer of automobile parts for Maruti Udyog Ltd.; they have received certain moulds from Maruti Udyog Ltd. and taken cenvat credit of duty paid on the said moulds. They cleared the final products on payment of duty on various dates. Under the impression that the amortised cost of moulds were not included in the assessable value of product cleared by them to Maruti Udyog Ltd., they issued four supplementary invoices on 8th December 2001 in respect of invoices of the final products cleared by them during the earlier period and paid the duty of Rs.1,08,727/-. It is claimed that they were informed by Maruti Udyog Ltd. that the value of amortised cost of moulds was already included in the assessable value and accordingly, they returned supplementary invoices. The assessee suo muto took credit after intimating the Department in June, 2002. The show cause notice was issued in April 2004 and the original authority confirmed the demand of duty and imposed equal amount as penalty. On appeal by the assessee, the Commissioner (Appeals) upheld the demand of duty along with interest but set aside the penalty. The party is in appeal against the confirmation of demand and interest and the Department is in appeal against setting aside the penalty.
4. Learned Advocate for the assessee submits that it was under a mistaken impression that they raised supplementary invoices and since Maruti Udyog Ltd returned the said supplementary invoices, they have taken suo muto credit of the duty paid by them on the said supplementary invoices and that there was no suppression of facts involved. He submits that inasmuch as the duty already stands paid on the value inclusive of amortisation cost , they should be allowed the credit taken by them and no demand should be sustained.
5. Learned SDR submits that the claim of the assessee that amortisation cost is already included in the assessable value at the time of clearance to Maruti Udyog Ltd. is not supported by any evidence . At any rate, on the basis of supplementary invoices issued by the assessee, the question of the assessee themselves taking credit does not arise. The supplementary invoices are valid documents only for the purpose of credit to be taken by the buyer of the inputs.
6. I have carefully considered the submissions from both sides and perused the records. No evidence on record regarding the claim by the learned Advocate for the assessee that cost of amortisation stands included in the assessable value of goods cleared by them prior to 8th June, 2001 has been shown from records. No communication from Maruti Udyog Ltd. stating the reasons for return of the supplementary invoices were also produced before me. Under these circumstances, the claim of the assessee that they are eligible for refund of duty paid by them on the four invoices is not substantiated. At any rate, the duty paid on supplementary invoices by the assessee may be available as credit to the recipient of the inputs in the first place. The question of the assessee themselves taking credit of duty paid by them on the supplementary invoices raised on their buyers does not arise.
7. In view of the above, the taking of credit suo muto was not justified. Under these circumstances, the order of the Commissioner (Appeals) in upholding the demand cannot be assailed. At the same time, it appears to be a case of bona fide mistake in taking credit of duty paid on the supplementary invoices. It also appears that the issue of non-inclusion of amortised cost was not raised by the Department but suo muto considered only by the assessee and the differential duty was paid by them accordingly. Under these circumstances, the order of the Commissioner (Appeals) in not sustaining penalty cannot be considered as unreasonable.
8. In view of the above, the appeal by the assessee is rejected. The appeal by the Department is also rejected. Cross-Objection by the assessee is also disposed.
(M. Veeraiyan) Member (Technical) scd/ 4