Custom, Excise & Service Tax Tribunal
M/S. Pepsico India Holding P. Ltd vs Commissioner Of Central Excise, ... on 25 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/1314/12 [Arising out of Order-in- Appeal No. BC/54/M-II/2012-13 dated 22-5-12 passed by the Commissioner of Central Excise (Appeals), Mumbai III] For approval and signature: Honble Mr 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 :
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?
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M/s. Pepsico India Holding P. Ltd.
:
Appellant
VS
Commissioner of Central Excise, Mumbai-II
:
Respondent
Appearance
Shri. Akrit Jain, CA for the Appellants
Shri. S.V. Nair, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 25/10/2016
Date of decision: 25/10/2016
ORDER NO.
The appellant availed credit on the invoices, wherein Serial Number of the invoices either not printed or hand written. In one of the invoice credit was taken on Xerox copy of the invoice. For this reason adjudicating authority has denied the Cenvat credit. Being aggrieved by the Order-in-Original, the appellant filed appeal before the Commissioner(Appeals) which was rejected, therefore appellant is before me.
2. Shri. Akrit Jain, Ld. C.A. appearing on behalf of the appellant submits that as regard the printed serial number on the invoices, this tribunal in their own case held that as per the Rule 11 of Cenvat Credit Rules, 2002 the only requirement is that invoice should be serially numbered therefore allegation of not having printed serial number is not correct. As regard the credit availed on Xerox copy, he submits that though the credit was taken on Xerox copy but there is no dispute that input covered in the said invoices was received in the factory and used in the production therefore substantial compliance for taking credit was made except having original invoices. He placed reliance on following judgments:
(a) Kamani Tubes Ltd Vs. CCE [2001(134) ELT 665(T-LB)]
(b) CCE Vs. Satyen Dyes[2001(134) ELT655(T-LB)]
(c) CCE Vs. Steelco Gujarant Ltd[2010(255) ELT 518(Guj)]
3. Shri. S.V. Nair, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that since invoice do not bear printed serial number and credit was availed on photocopy, it is against the provision of Cenvat credit rules accordingly credit should be denied. He submits that the procedure and documents prescribed for the purpose of taking credit is clear intention to avoid fraudulent availment of credit therefore appellant is not entitle for the credit being taken on hand written serial numbered invoice and Xerox copy of the invoice. He placed reliance on the Honble H.P High Court judgment in case of Commr. Of C. Ex. Vs. Chandra Laxmi Tempered Glass Co. Pvt Ltd[2009(234) ELT 245(HP)].
4. I have carefully considered the submissions made by both sides and perused the record.
5. I find that the only allegation for denying the credit is that the appellant availed credit on the invoice which do not appear printed serial number whereas invoices were numbered duly hand written. In one invoice credit was taken on Xerox copy. I find that except these allegation there is no case of the Revenue that input covered under said invoices were not received by the appellant and not used in the manufacture of final product. The credit is allowed in respect of duty suffered on the input and if that is not disputed credit cannot be denied. The allegation made by the Revenue is of procedural nature and for such procedural lapse substantial benefit of Cenvat credit cannot be denied as the duty payment under invoice, receipt of input and use thereof has not been disputed. In the appellants own case on the similar issue this Tribunal vide Order No. A/05&06/12/SMB/C-IV dated 9-2-2012 held that as per rule 11 of Cenvat Credit Rules, 2002 Cenvat credit can be availed on the strength of invoice which shall be serially numbered, there is no requirement in the rule that invoice should have printed serially numbered, accordingly Cenvat credit was allowed. As regard the credit taken on Xerox copy of invoices, the issue is covered by judgment of Honble Gujarat High Court in case of Steelco Gujarant Ltd(supra). In view of the settled legal position, I am of the view that impugned order is not sustainable hence, the same is set aside. Appeal is allowed.
(Pronounced in Court ) Ramesh Nair Member (Judicial) sk 2 E/1314/12