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2019 (10) TMI 1303 - AT - Central ExciseCENVAT Credit - duty paying invoices - improper invoices to avail CENVAT Credit - contravention of the provisions of Rule 11(2) of CER, 2002 read with Rule 9(2) of CCR, 2004 - power of Commissioner (Appeals) to remand the case - Revenue Neutrality - HELD THAT:- The ld. Commissioner (Appeals) has failed to exercise the jurisdiction vested in him judiciously as noticed hereinabove. Further, allowing of appeal by way of remand is bad in law. Ld. Commissioner (Appeals) was required to make such further inquiry and obtain explanation and details as deemed fit, and should have passed a reasoned order in accordance with law either allowing or dismissing the appeal - From the plain reading of Rule 9(2) with the proviso, it is evident that legislature has taken into account difficulty that may arise for some discrepancy in the documents on the basis of which, credit has been taken. To alleviate such difficulty and to facilitate the assessee, power has been conferred on the jurisdictional Deputy/Asstt. Commissioner that he may enquire into documents, etc. and on being satisfied that the goods or services covered by the said documents have been received and accounted for in the books of account of the receiver, he may allow the cenvat credit. Power of Commissioner (Appeals) to remand the case - HELD THAT:- The Commissioner (Appeals) has got no powers to order for reinvestigation. Further, the Commissioner (Appeals), being a creature of statute, has no powers to extend the limitation prescribed in the Act for issue of show cause notice. Further, it is found that an order allowing to take cenvat credit under the proviso to Rule 9(2) of CCR is not an adjudication order and accordingly, the monetary limit prescribed for an adjudication order is not applicable. Admittedly, there is no cause to issue notice. Further, the Commissioner (Appeals) has got no powers to remand in the facts and circumstances. Further, duty paid nature of the goods/inputs in question has not been doubted. Evidently, there is only a technical objection raised by the Preventive Team. Revenue Neutrality - HELD THAT:- Rule 16 (1) of Central Excise Rules provides that where any goods on which duty has been paid at the time of removal thereof, or brought to any factory for being re-made, refined, reconditioned, etc., the assessee shall state the particulars of such Rule in his records and shall be entitled to take cenvat credit of the duty paid, as such goods are received as inputs under the Cenvat Credit Rules, and utilise this credit, according to the said Rules. Thus, under the facts and circumstances, there is no violation of the provisions of Rule 16 of Central Excise Rules. Further, the position is wholly Revenue neutral as the same amount of duty is available as cenvat credit even if the procedure under Rule 16 of Central Excise Rules is followed - there is no error in the order-in-original passed by the Dy. Commissioner allowing cenvat credit to the assessee –Rajasthan Antibiotics. Further, taking notice that under Notification No.71/71-CE, the assessee is entitled to a set off of the duty paid on the intermediate products from the final products, it was held that the benefit of the said notification cannot be denied on the technical ground of non-compliance with Rule 56A procedure when the assessee contested the correctness of the classification and dutiability of the intermediate products, observing that the assessee could not have ordinarily complied with the procedure under Rule 56A (Proforma GATI Procedure). Appeal allowed - decided in favor of appellant.
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