TMI Blog2016 (12) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... wed - demand not sustainable - decided in favor of appellant. - Appeal No.E/21328/2015 - FINAL ORDER No.A/30950/2016 - Dated:- 27-9-2016 - Ms. Sulekha Beevi, C.S., Member (JudiciaI) Shri M. Karan Talwar, Advocate for the appellant. Shri Arun Kumar, Deputy Commissioner (AR) for the respondent. [Order per: Sulekha Beevi, C.S.,] Brief facts of the case as put forward by appellant are as follows: 1.1. M/s Hindustan Colas Private Limited (hereinafter referred to as the Appellant') is engaged in the manufacture and clearance of excisable goods Bitumen Emulsion, Polymer Modified Bitumen, Crumb Rubber Modified Bitumen (CRMB) and Modifier falling under Tariff item 27150090 and 40040000 respectively of the CETA. 1.2. During the period from June, 2011 to July, 2011 the Appellants manufactured CRMB on job work basis for HPCL. HPCL is having refinery at Visakhapatnam (HPCL refinery) and also a terminal in Visakhapatnam (HPCL Terminal) which is used for marketing and distribution of goods manufactured in HPCL refinery. HPCL terminal is registered with the Central Excise Department as a 'Depot'. 1.3. HPCL terminal supplied raw materials namely Asphalt Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in Rule 9 of CENVAT Credit Rules, 2004 the CENVAT Credit on supplementary invoices issued by First Stage Dealer is not admissible. 1.6. The appellants vide their letter dated 28.5.2012 addressed to the Additional Commissioner (Audit), Visakhapatnam-l Commissionerate and replied to the above audit objection. The appellants submitted a true copy of the PLA register containing details of differential duty of ₹ 48,75,312/- paid by HPCL refinery who is the manufacturer of the goods on which differential duty has been collected from the appellants. A show cause notice dated 9.11.2012 was issued proposing to recover the irregularly availed credit of ₹ 48,75,312/- along with interest and also for imposition of penalty. After due process of law, the original authority confirmed the demand, interest and imposed equal amount of penalty. In appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 2.1. The Ld. Counsel, Shri Karan Talwar appearing on behalf of the appellant, reiterated the grounds of appeal and submitted that though supplementary CENVAT invoices were issued by HPCL/T containing the description as First 'Stage Dealer', the HPCL/T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by HPCL/T are mentioned to be issued by 'First Stage Dealer. Therefore appellants have availed credit on improper documents, and the same has to be reversed. 4. I have heard both sides. 5. I may proceed to analyse the issue before me by first explaining the defect in the supplementary invoice issued by HPCL. The printed invoice shows the name and address of HPCL/T as 'First Stage Dealer. By scoring 'First Stage Deale and incorporating Reg. No. of HPCL (manufacturer), the defect has been rectified. a. The case of appellant is that the use of invoice with the head 'First Stage Dealer' was only an inadvertent mistake. When the defect was pointed out appellants vide letter dated 28.05.2012 replied to the department stating that it was only an inadvertent mistake and that credit was correctly availed and utilized by them and also furnished copy of PLA register. b. The appellants were manufacturing Crumb Rubber Modified Bitumen (CRMB) on job work basis for HPCL. Till 31/03/2012, HPCL was supplying raw materials (Bitumen VGIO / VG30) to appellant's plant at Visakhapatnam on stock transfer basis for utilizing the same in production of CRMB 55 / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly we have consulted our Range-IIE superintendent and he has advised us to get the rectification of the technical defects in the Invoices by taking up with HPCL authorities and there after make a request in writing to Assistant Commissioner, Central Excise, for issue of certificate as to satisfaction of the availment of CENVAT Credit in accordance with provisions of Rule 9(2) of the CENVAT Credit Rules, 2004. We have now got the technical defects in the invoices rectified by the HPCL, authorities who are duly authorized in this behalf Copies of the rectified supplementary invoices are here with enclosed for your reference. 6. The department has issued letter dated 26.02.2013 stating that the supplementary invoices cannot be accepted as proper documents and that certificate as to availment of credit cannot be issued. In this letter there is no mention as to the fate of the rectified supplementary invoices. After adjudication, the demand was confirmed along with interest and also imposing equal amount of penalty under 15(2) of 2004 read with Section 11AC of Central Excise Act, 1944 7. The facts and evidence narrated above makes it crystal clear that there was no in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly stock transfer of goods from the factory to the depots It was open to the manufacturer of cotton yam to clear the goods from his depot under invoice referred to under Rule 7(1) (a)(i). All the so-called invoices produced by the appellants to the adjudicating authority were, in fact, invoices within the category mentioned under Rule 7(1)(a)(i) of the CENVAT Credit Rules, 2002. In other words, the so-called depot invoices in this case were manufacturers' invoices and the same required to be accepted for purposes of Rule 9A of the said rules. Of course, if such invoices did not contain any essential particulars, it was open to the adjudicating authority to point it out to the appellants for rectification. We find that such an exercise has not been done in the present case. On the other hand, Learned Commissioner chose to treat the depots as independent dealers requiring to be registered with the department for the purpose of issue of CENVATABLE invoices. Indeed, the depots in this case were only extended arms of the respective manufacturers and the invoices issued by such depots were to be treated as manufacturer's invoices. Copies of all these invoices have been produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued by the manufacturers under which the duty had been paid on the goods. In view of these circumstances, mere absence of words 'duplicate for transport' on the invoices and non mention of debit of the duty at the manufacturer's end are only procedural lapses because of which the Modvat credit cannot be denied. The Impugned Order, therefore, is not sustainable. The same is set aside. The appeal is allowed. 10. From the totality of facts and evidence placed before me there is nothing to show that the supplementary invoices were obtained in a surreptitious manner with intend to avail credit wrongly, which the appellants were otherwise not eligible for. Apart from the technical defects, the department does not allege any discrepancy in these documents. This Bench raised a question to Department whether the rectified supplementary invoices are in order. The Ld. AR was fair enough to concede this aspect. In such circumstances, as the defects are proved to be procedural lapses, the denial of credit is unjustifiable especially when after rectification, the invoices are in order. 11. The Ld. Counsel has argued on the ground of limitation also. As discussed above the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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