Custom, Excise & Service Tax Tribunal
M/S.Balkrishna Industries Ltd vs Cce, Jaipur-I on 9 October, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/Decision:09.10.2015
Excise Appeal No.E/1789/2006 and E/1519/2010-EX(DB)
[Arising out of Order-in-Appeal No.67(MPM) CE/JPR-I/2006 dated 17.02.2006 in Appeal NO.E/1789/2006 and Order-in-Appeal No.200(DK)CE/JPR-I/2010 dated 31.03.2010 in appeal No.E/1519/2010, passed by the Commissioner (Appeals-I), Customs & Central Excise, Jaipur]
M/s.Balkrishna Industries Ltd. Appellants
Vs.
CCE, Jaipur-I Respondent
Appearance:
Rep. by Shri Rahul Tangri, CA for the appellants.
Rep. by Shri Govind Dixit, DR for the respond.
For approval and signature:
Honble Smt. Sulekha Beevi C.S., Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 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? Coram: Honble Smt. Sulekha Beevi C.S., Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 53217-53218/2015 Dated:9.10.2015 Per Sulekha Beevi C.S.:
The issue to be considered in the above appeals is whether the credit is admissible on re-constructed copies of bill of entry. Since both the appeals deal with the very same issue, they were heard together and are being disposed of by this common order.
2. The facts, in brief, are as under:-
The appellants are engaged in the manufacture of pneumatic tyres and are availing cenvat credit on inputs, capital goods and input services. During the period 1.4.2004 to 31.12.2004, it was observed by the department that appellants took cenvat credit on photocopies of bills of entries. As the originals were lost, they had lodged FIR on 13.09.2004 with Police Authorities, Bhiwadi in regard to loss of the bills of entries. Appellants had also taken credit on inputs stored in the godown outside factory for which permission had been granted from the Departmental Authorities. A show cause notice dated 3.5.2005 was issued (a) proposing disallowance of credit amount of Rs.27,33,393/- on the ground that the bills of entries are not originals and also alleging that few bills of entries were more than one year old, (b) the credit amount of Rs.1,03,336/- was proposed to be denied for the reason that the duty paying documents were more than one year old, (c ) the credit amount of Rs.16,12,486/- was proposed to be denied for reason that the inputs were stored in godwon outside the factory and (d) the credit of Rs.8,120/- was proposed to be denied for the reason that the air conditioners on which the credit was taken were not found installed in the factory. After adjudication, the order-in-original dated 30.09.2005 was passed confirming the above demand and imposing penalty. The appellants filed appeal before the Commissioner (Appeals), who vide order dated 17.02.2006 modified the order allowing credit of Rs.16,12,486/- in respect of the goods stored outside the factory. The penalty of Rs.5 lakh was reduced to Rs.3 lakh. The other reliefs sought were rejected. Against the said order, the appellant approached the Tribunal. The present appeal no.E/1789/2006 is the appeal filed against the said order of the Commissioner (Appeals) dated 17.02.2006.
3. It has to be mentioned that the entire amount of credit of Rs.28,44,849/- (Rs.27,33,393/- + 103336/- + Rs.8,120/--) had been debited by the appellants vide entry made by them as on 31.01.2005 itself.
4. During the pendency of the appeal no.E/1789/2006, the appellants obtained re-constructed bills of entry of 7 nos. from the concerned Customs Authorities. They accordingly availed credit of Rs.22,83,379/- pertaining to 7 reconstructed bill of entry. The Audit party objected to the same and once again vide entry dated 23.03.2006, the appellant reversed the credit of Rs.22,83,379/-. A further show cause notice dated 14.02.2008 was issued to the appellant alleging wrong availment of cenvat credit of Rs.22,83,379/- taken on re-constructed bills of entry. After adjudication, the disallowance of credit was confirmed by the order-in-original dated 16.01.2009. The appellant filed appeal before the Commissioner (Appeals) who upheld the demand, interest and penalty. The said order of the Commissioner (Appeals) dated 31.03.2010 is impugned in appeal no.E/1519/2007.
5. At the outset, it has to be made clear that the credit was disallowed in the first instance on the ground that the bills of entry were not originals but only photocopies. The appellant then reversed the credit. During the pendency of this appeal before the Tribunal, the appellant obtained re-constructed copies of the bills of entry and availed credit on such re-constructed copies. This was adjudicated by the Department and the appellant then again reversed the credit so availed. The dispute relates to the credit availed on bills of entry on the ground that they are not the originals. Although in the first instance mere photocopies were available before the adjudicating officer and the Commissioner (Appeals), in the second instance of adjudication, the officers had occasion to peruse and verify the reconstructed copies of the bills of entry. The appellant has filed misc. application no.E/Misc/311/2009, which is a petition to receive the copies of remaining re-constructed bills of entry in Appeal No.E/1789/2006 as additional evidence. This application was considered along with the final hearing of these appeals.
6. The credit has been disallowed on three grounds (1) The bills of entry are not original (2) few documents on which credit is availed are more than a year old, (3) the air-conditioners upon which credit is availed is not installed in the factory. The main dispute, therefore, narrows down to the admissibility of the cenvat credit in respect of the re-constructed copies of the bills of entry. The appellant had originals of the documents in dispute. They lost the documents and FIR has also been lodged for the same. During the time of audit, the appellants could not place the original documents before the officers. But, however, they placed the photocopies. The credit was denied for the reason that bills of entry are photocopies. Later, they obtained reconstructed copies of these documents. Credit availed on reconstructed copies was also denied. It is seen from the documents that these reconstructed bills of entry have been attested as true copies by the officers of customs. By such authentication and attestation by the concerned officers of Customs Authorities, the copies of bills of entry have, in our view, become proper duty paying documents. The genuineness of the documents having been established the denial of credit is unjustified.
7. Another ground alleged for denying the cenvat credit is that few documents are more than one year old. The receipt of inputs in the factory and duty paid upon them is not disputed. The Cenvat Credit Rules, 2002 do not provide any time limit for availing credit on inputs or capital goods. So this contention of the Revenue deserves to be brushed aside.
8. Ld. DR strenuously argued that the adjudicating officer in appeal no.E/1789/2006 had no occasion to peruse the reconstructed documents and, therefore, a chance has to be given for verification of these documents . In our opinion, it would be a futile exercise to send back this appeal for verification. Both the appeals pertain to the availment of credit on very same duty paid documents. In the second instance, the Authorities below had occasion to examine the reconstructed bills of entry but the credit was denied on the ground that these are not originals. The misc. application to receive the additional evidence is opposed by the Revenue contending that the additional evidence cannot be allowed to be adduced at appellate stage. The copies of the reconstructed bills produced along with the application, in our view, cannot be considered as additional evidence in the strict sense. Both appeals pertain to the same issue, and the reconstructed bills of entry are part of records. There is no dispute raised in any of the two adjudications regarding the duty paid on these documents.
9. In Klockner Supreme Pentaplast Ltd. Vs. CCE, Indore reported in 1999 ( 114) ELT 253 (Tribunal), this Tribunal has observed that the credit should not be denied merely for the reason that the bills of entry are reconstructed copies. From the facts of this case, as discussed above, and applying the ratio laid down in the above judgement, we are able to conclude that the appellant is entitled to avail credit on reconstructed copies of bills of entry. So, the first ground for denial of credit is answered in favour of the assessee. The second ground on which credit is denied is that the documents are more than a year old. The Cenvat Credit Rules, 2002 does not impose any time limit for availing credit. So the disallowance of credit on this ground is unjustified. In regard to the credit availed on air-conditioners, the ld. Counsel submitted that the air conditioners are installed in the office of the factory and that the office is part of the factory. In Boards Circular No.943/4/2011-CX dated 29.04.2011, it is mentioned that goods such as furniture and stationery used in an office within the factory are goods used in the factory and are used in relation to the manufacturing, business and hence, the credit on the same is to be allowed. Therefore, credit on duty paid on air conditioners installed in office of the factory is admissible. The issues are held in favour of the appellant. 10. In the result, we set aside the impugned orders and allow the appeals with consequential reliefs, if any.
(Pronounced operative portion in court) ( Sulekha Beevi C.S. ) Member (Judicial) ( B. Ravichandran) Member (Technical) Ckp.
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