Custom, Excise & Service Tax Tribunal
Cce, Chennai vs M/S. Amalgamations Valeo Clutch (P) Ltd on 15 May, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/38/2003
(Arising out of Order-in-Appeal No.77/2002 (M-I) dated 23.10.2002 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Smt. Jyoti Balasundaram, Vice President
Honble Shri P. Karthikeyan, Member (T)
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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Chennai Appellant
Vs.
M/s. Amalgamations Valeo Clutch (P) Ltd. Respondents
Appearance Shri V.V. Hariharan, Jt. CDR for the Appellants Shri K.S. Venkatagiri, Advocate, for the Respondent CORAM Honble Smt. Jyoti Balasundaram, Vice-President Honble Shri P. Karthikeyan, Member (T) Date of Hearing: 15.05.2009 Date of Decision: 15.05.2009 Final Order No. ____________ Per P. Karthikeyan This is an appeal filed by the Revenue. Vide the impugned order the respondents were allowed CENVAT credit of Rs.4,79,183/- being CVD paid under Bills of Entry dated May to July 199 denied by the original authority. In the appeal the Revenue has taken the ground that in terms of Rule 57G(5) of Central excise Rules, 1944, in force during the material time barred the recipient of inputs from availing CENVAT credit after the expiry of six months from the date of issue of the documents specified for the purpose of taking credit. In the instant case the respondents had taken credit after the expiry of six months from the date of payment of CVD in all the three cases. Moreover, the respondents were only in possession of photocopies of the relevant Bills of Entry.
2. We have heard both sides. We find that the Commissioner (Appeals) allowed CENVAT credit following the ratio of a decision of the Tribunal in CCE Vs. BPL Ltd. reported in 2002 (51) RLT 186 (CEGAT), Bangalore. The relevant finding of the Commissioner (Appeals) is reproduced below:-
Nevertheless, one fact which is not disputed is that the goods under import were received in the factory of manufacturer and used by them in the final products. Though the MODVAT copy of the Bill of Entry was lost and the appellant has applied for the certificate to be issued within a period of 6 months from the date of Bill of Entry to the customs authorities in respect of 3 Bill of Entry, but no proper certificate was issued by the Customs authorities and therefore, the appellants took MODVAT credit on the basis of photocopies of Bills of Entries. No application for issue of certificate in respect of Bill of Entry No. XD0400557 dated 20.4.99 is available on records and therefore, there is no question of issue of certificate by payment of CVD by Customs authorities in respect of this Bill of Entry and therefore, the appellant should not have taken any credit on the said Bill of Entry. The CEGAT in their order in the case of CCE Vs. BPL Ltd. reported in 2002 (51) RLT 186 (CEGAT), Bangalore, have decided that if the loss of triplicate copy of the Bill of Entry is intimated to the department and application for issue of certificate under Rule 57G(6) is made within six months from the date of Bill of Entry, the credit cannot be denied to the appellants even if no action is taken on the application of the appellants by the Customs authorities provided, there is no doubt about the receipt of the goods. It has further been held by CEGAT that such credit can also be taken beyond the period of six months by the appellants. The appellants case in respect of Bill of Entry at Sl. No. 1 to 3 is squarely covered by the ratio laid down in the said order of the CEGAT involving credit of Rs.4,79,183/-. The appellants are, therefore, entitled to credit of Rs.4,79,183/- involving of these Bills of Entries and the same is accordingly allowed.
3. We find that the Revenue has no case that the decision of the Tribunal relied upon by the Commissioner (Appeals) has been over ruled by higher judicial forum or that the Revenue has obtained any stay order from any such forum. In the circumstances we do not find any reason to interfere with the impugned order. In the result we sustain the impugned order and reject this appeal.
(Dictated and pronounced in open court)
(P. KARTHIKEYAN) (JYOTI BALASUNDARAM)
Member (T) Vice President
Rex
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