M/S. Uni Deritend Limited vs Commissioner Of Central Excise Nagpur on 6 October, 2010
3. The learned Advocate appearing on behalf of the appellants submitted that the appellants have procured the said input against the duty paid invoice issued by the second stage dealer (M/s. Nagpal Steels ) and the same has been cleared after processing on payment of duty. There is no allegation against the appellant that they have not received the goods in their factory and there is no statement of any of the representative of the appellants that they have not received the goods as per description in the invoice. He also submitted that the allegation made by the department that the said goods has not received in the factory of the appellant is baseless as they have not physically found in the factory of the appellant that these goods were not used in their manufacturing of their final product. Furthermore before the processing the said goods, appellants carried out the quality test of the input procured by them as per the invoice. He further submitted that there is no allegation that the appellants had not received the impugned goods against the duty paid invoice and there is also no allegation that they have not discharged their duty liability. He further submitted that in the appellants own case on identical facts this Tribunal Vide Order No. A/1434/C-IV/SMB/2007 dated 11.10.2007 had allowed their appeal. Following the decision of M/s. Rishabh Industries Vs. Commissioner of Central Excise, New Delhi reported in 2003 (153) ELT 114 (Tri.Del.)], which was confirmed by the Honble High Court of Delhi and same is reported in 2008 (228) ELT 347 (Del.) Commissioner of Central Excise, Delhi-II and submitted that as per the CBEC Circular No.766/82/2003-CX dated 15.12.2003, the Board had clarified that on the issue of availment of credit by the user manufacturer, it is clarified that action against the consignee to reverse/recover the Cenvat Credit availed of in such cases need not be restored to as long as the bona fide nature of the consignees transaction is not in dispute. In the case of supplier has received payment from the buyer. (including the amount shown as duty of excise) i.e. the person taking CENVAT Credit has made payment of invoice amount action should also be taken against the supplier under Section 11D and 11DD of the Central Excise Act, 1944. Hence, the demands are not sustainable.