Custom, Excise & Service Tax Tribunal
Texport Syndicate (I) Ltd vs Cce Belapur on 29 December, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/1484/09 Mum
(Arising out of Order-in-Appeal No. YDB/124/BEL/2009 dated 29.10.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai II)
For approval and signature:
Honble Shri Ashok Jindal, 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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Texport Syndicate (I) Ltd.
:
Appellant
Versus
CCE Belapur
Respondent
Appearance Shri V.S. Sejpal, Advocate for Appellant Shri V.K. Singh, SDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 29.12.10 Date of Decision : 29.12.10 ORDER NO.
The appellant is in appeal against the order of the Commissioner (Appeals) for denial of CENVAT credit.
2. The facts of the case are that -
(a) CENVAT credit has been denied on the invoice issued by M/s Arunodaya Mills Ltd. dated 30.07.2003 on the ground that it is taken on extra copy of the invoice.
(b) CENVAT credit has been denied on four invoices issued by M/s. Bharat Vijay Mills in the month of April 2004 on the ground that the credit is taken on photo copies of invoice.
3. The learned Advocate for the appellant submits that it is an admitted fact that during the course of audit they were unable to produce the original copy of invoice issue by M/s. Arunodaya Mills Ltd. and, therefore, they could not produce original copy of invoice at that time. They have also failed to produce the original copy of invoice before the lower authorities. He submits that, now they traced out the original copy of the invoice and same may be considered at this stage which is thefact on record. He further submits that when the original copy of the invoice is available, the order of denial of input credit is to be set aside. In that event, he prayed, the matter be sent back to the original adjudicating authority to examine the original invoice issued by M/s. Arunodaya Mills Ltd. to pass order afresh.
4. With regard to the availment of input credit on the strength of xerox copy of the invoice issued by Bharat Vijay Mills, he submits that the appellant has obtained exemption under Notification No. 30/2004-Cus with effect from 01.04.2005. At the time of availing the exemption, the appellant was having a credit balance of unutilised input credit of Rs.4,68,938/- which was lapsed as unutilised while opting the exemption. If at all the claim of input credit on the strength of photo copy is denied, same can be appropriated against the unutilised input credit lying in their account during opting exemption under the above said Notification.
5. Heard and considered.
6.1 On careful examination and submissions made by the learned Advocate, I find in the impugned order, that the lower authorities have denied the credit on the strength of extra copy of invoice relying on several decisions of this Tribunal. At present, the appellant is having original copy of invoice in their hand, in that event, it would be in the interest of the justice to sent back the matter to the adjudicating authority to examine whether the appellant has rightly availed the input credit on the strength of this original invoice or not.
6.2 With regard to the issue of availment of CENVAT credit on the strength of xerox copy of invoice the lower appellate authority has denied input credit to the appellant relying on the decision of the Larger Bench of this Tribunal in the case of CCE vs. Avis Electronics Pvt. Ltd. 2000 (117) ELT 571 (Tri. LB) and the decision in the case of CCE Raipur vs. Vandana Energy & Steel Pvt. Ltd. 2008 (223) ELT 83 (Tri. Delhi).
6.3. On perusal of the decision in the case of Avis Electronics Pvt. Ltd (supra) I find the Larger Bench have dealt with the provisions prior to the year 2000. In the year 2000, a statutory change has taken place in the provisions of availment of CENVAT credit on inputs. The decision of Larger Bench seems to be irrelevant in the facts of this case and the decision of Vandana Energy & Steel Pvt. Ltd (supra) is some how having different facts which are not similar to the facts of this case as in that case the credit was taken on the strength of photocopy of the office copy of the xerox copy of invoice which is not in this case. In this case, the appellant has taken the credit on the strength of the photo copy of the original invoice. Hence both the decisions are not relevant to the facts of this case. Moreover in the case of Matsushita Television & Audio India Ltd. vs. CCE Noida - 2004 (177) ELT 496 (Tri. Del.) this Tribunal has considered the issue and arrived at a decision that they had produced before the department photocopy of the triplicate copy of Bill of Entry and photocopy of the transporter copy of the invoice / challan besides other documents. The very fact that they have produced photocopy of the duplicate copy of challan and triplicate copy of Bill of Entry goes to show of the specified documents on the strength of which credit had been taken by them. It was further observed that neither the receipt of the goods in the factory nor their use for thee intended purpose nor the duty paid nature has been doubted by the department. In view of these facts, the appellants are eligible to take the Modvat Credit of the duty paid on the inputs. 6.3 It has also been observed from the reply filed by the appellant to the show-cause notice that the balance lying in their CENVAT credit has been lapsed while they opted for exemption under Notification No. 30/04 on 01.042005. No speaking order has been passed by the original adjudicating authority while passing the adjudication order and same was not considered by the lower appellate authority saying that as the claim of the appellant has not been considered by the adjudicating authority, the lower appellate authority will not be dealt with the issue. In that event, again it would be in the interest of the justice to re-examine the defence taken by the appellant, in detail, by the original adjudicating authority and to arrive at an appropriate decision after considering the discussion made in this order hear-in above.
7. With these observations the impugned order is set aside and the appeal is allowed by way of remand keeping all issues open to consider the issue afresh by the original adjudicating authority after giving a reasonable opportunity to the appellant to present their case.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 5