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2023 (6) TMI 541 - CESTAT MUMBAIWrongful availment of MODVAT Credit - denial on the ground that Bills of Entry was not in appellant name but in the name of M/s. German Remedies on whose behalf the appellant was carrying out the manufacturing activities - failure to establish with relevant documentary evidences the receipt of the impugned goods in their manufacturing premises - HELD THAT:- As per the show cause notices the case of the department is that the appellants have taken credit on the basis of the Bills of entry which were not in their name but in the name of M/s. German Remedies and therefore they are not eligible to take the credit and the said stand of the department was later supported by this decision of the Larger Bench of the Tribunal in the matter of BALMER LAWRIE & CO. LTD. VERSUS COMMISSIONER OF C. EX., KANPUR [2000 (1) TMI 74 - CEGAT, NEW DELHI]. But the said decision of the Tribunal was distinguished by the Hon’ble High Court in the matter of MARMAGOA STEEL LTD. VERSUS UNION OF INDIA [2005 (4) TMI 89 - HIGH COURT OF JUDICATURE AT BOMBAY] by holding that Rule 57G ibid does not require that the bill of entry should be in the name of the person claiming credit of duty and what is required to be established for taking credit is that the goods used as inputs are duty paid and the credit of duty paid on the said goods has not been taken. The said view of the Hon’ble High Court has been upheld by the Hon’ble Supreme Court in an appeal filed by the department against the decision of the Hon’ble High Court which has been reported in UNION OF INDIA VERSUS MARMAGOA STEEL LTD. [2008 (7) TMI 95 - SUPREME COURT]. When the show cause notices have been issued for rejecting the credit only on the ground that bills of entry were not in the name of the appellant then it is not open for the Commissioner (Appeal) to go in any other issue as no one can go beyond the show cause notice and the said ground itself is sufficient to set aside the impugned order. While remanding the matter back to the first appellate authority, this Tribunal has specifically recorded that the appellant was stating before the lower authorities that they had received the material/inputs covered under the bills of entry and the said bills of entry had endorsement alongwith dealer’s invoice. It is established that goods covered with the bills of entry in issue have been received by the appellant and the same were consumed in their manufacturing premises. Therefore the Appellant is eligible to avail the Modvat Credit and has rightly availed the same. Appeal allowed.
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