Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S. Bharat Parabolic Springs Pvt. Ltd on 5 February, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No.E/1716/2010 (Arising out of Order-in-Appeal No.SB/89/Th-I/10 dt. 14.7.2010 passed by the Commissioner of Central Excise (Appeals) Mumbai Zone-I ) For approval and signature: Honble Shri Ramesh Nair, 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 : No
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?
======================================================
Commissioner of Central Excise, Thane-I
:
Appellant
VS
M/s. Bharat Parabolic Springs Pvt. Ltd.
:
Respondent
Appearance
Shri V.K. Shastri Asstt. Commr. (A.R.) for Appellant
Shri Sunil Agarwal, Advocate with
Ms. Pushpa Pai, Advocate for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Date of hearing :05/02/2016
Date of decision :05/02/2016
ORDER NO.
The appeal is directed against the Order-in-Appeal No. SB/89/Th-I/10 dt. 14.7.2010 passed by the Commissioner of Central Excise (Appeals) Mumbai Zone-I, wherein the Learned Commissioner allowed the appeal of the respondent by setting aside the Order-in-Original No. 17/MP-01/Th-I/2009 dt.22.10.2009.
2. The fact of the case is that the respondent were supplied goods imported by M/s. Tata Motors Ltd., the respondent have availed Cenvat Credit on the basis of photocopy of the Original Bill of Entry. On pointing out by the audit party, they have taken stand that the cenvat credit availed. Since the Tata Motors Ltd. have issued invoice as an importer wherein a declaration was made for enabling to avail the cenvat credit by the respondent. The show cause notice was issued proposing denial of Cenvat credit on the ground that the respondent has availed credit on the photocopy of the Bill of Entry. The adjudicating authority has confirmed the demand and imposed penalties. The respondent filed appeal before the Commissioner (Appeals), who has allowed the appeal therefore the Revenue is before me.
3. Shri V.K. Shastri, the Learned Assistant Commissioner (A.R.) reiterating the grounds of appeal submits that on the receipt of the goods by the respondent they availed the credit on the basis of photocopy of the bill of entry which is not of valid document. Subsequently, they changed their stand that the cenvat credit availment is against the invoices issued by M/s. Tata Motors Ltd. Since at the time of taking credit they have availed credit on invalid document i.e. photocopy of the Bill of Entry, therefore the respondent was not entitled for the credit, hence the adjudicating authority has rightly disallowed the credit.
4. On the other hand, Shri Sunil Agarwal the Ld. Counsel along with Ms. Pushpa Pai Learned Counsel for the respondent submits that though at the time of taking credit the respondent has mentioned in their Cenvat account, the details of the bills of entry but the invoice issued by M/s. Tata Motors Ltd., was very much available with the respondent and merely because wrongly mentioned the bill of entry number instead of invoice Cenvat credit cannot be denied. He took me to the Rule 9 of Cenvat Credit Rules 2004 wherein the document for the purpose of taking Cenvat Credit are prescribed and one of the document under Clause (2) is the invoice issued by the importer. As per this entry the importer is not required to be registered therefore invoice issue by M/s. Tata Motors Ltd. is a valid document. In support of his argument he placed reliance on the following judgments:
(i) Bharat Aluminium Co. Ltd. Vs. Commissioner of Central Excise, Raipur 2015 (323) E.L.T. 578 (Tri.Del.)
(ii) Meenakshi Match Industries Vs. Commissioner of C. Ex.Madurai 2010 (262) E.L.T.925 (Tri.-Chennai)
(iii) Jindal Steel & Power Ltd. Vs. Commr.of C. Ex. & Service Tax, Raipur 2013 (298) E.L.T. 447 (Tri.-Del.)
(iv) Chloride Alloys India Ltd. Vs. Commissioner of C.Ex. Bnagalore-I 2015 (321) E.L.T. 265 (Tri.-Bang.)
(v) Commissioner of Central Excise, Nagpur Vs. ACC Ltd. 2015 (315) E.L.T. 111 (Tri.-Mumbai)
(vi) Commr. of Cus. & C. Ex. Vs. Matsushita Television & Audio India Ltd. 2015 (324) E.L.T. 264 (All.)
(v) Commissioner of C. Ex. Jamshedpur Vs. Tata Motors Ltd.
2015 (325) E.L.T. 569 (Jhar.)
5. I have carefully considered the submissions made by both the sides. I find that the respondent have initially availed Cenvat Credit mentioning the details of the Bill of Entry. Subsequently on pointing out by the audit, they produced the invoices issued by M/s. Tata Motors Ltd. the invoice issued by an importer is a valid Cenvatable document. Therefore, I am of the view that merely by mentioning the wrong details of the document credit cannot be denied, particularly when the valid duty paying documents i.e. invoice was available with the respondent. Ld. Commissioner (Appeals) after calling the report from the Jurisdictional Officer confirmed that the receipt, issue, use of the imported goods on which credit was taken and production out of the said input is not under dispute. In this fact, I do not see any reason why the Cenvat Credit should be denied. The judgments relied upon by the Ld. Counsel support the case of the respondent. The impugned order is upheld and the Revenues appeal is dismissed.
(Pronounced in court) (Ramesh Nair) Member (Judicial) SM.
5Appeal No.E/1716/2010