TMI Blog2010 (9) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... t any credit of AED accruing prior to 01.03.2003 to a manufacturer could also be utilized towards payment of BED and SED as well on final product (Clause 78 of Finance (No.2) Bill, 2004) - appellants claimed Cenvat credit of AED (GSI) – Held that: - duty of excise or service tax due on the input or input service has been paid and such input or input service has actually been used or is to be used in the manufacturing of final products or in providing output services - matter is remanded back to the Joint Commissioner, who shall scrutinize the documents furnished by the appellants and satisfy himself and record the satisfaction, if any, in term of Sub-Rule(2) of Rule 9 of the Cenvat Credit Rules, 2004 and if the requirements laid down therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d towards payment of AED only leviable on a final product. Therefore, prior to 01.03.2003, invoices issued by first stage dealer did not show the element of AED paid on sugar sold by them to the appellants. There was no statutory liability on first stage dealers to show elements of various duties paid on goods sold by them. It is appropriate to mention here that the records of first stage dealers are subject to check by Central Excise Officers and a periodical return is also submitted by first stage dealers to Central Excise Range Office. This is the factual scenario in which the invoices issued by first stage dealers during the relevant period 01.04.2000 to 09.10.2000 to the appellant are to be understood. With effect from 01.03.2003, an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of AED(GSI) paid on sugar during the period 01.04.2000 to 09.10.2000 is admissible to the appellant in view of Section 88 of Finance Act (No.2), 2004 irrespective of the fact that payment of such duty was not shown in invoices issued by the dealers to the appellants, as required under Rule 9, Cenvat Credit Rules, 2004?" 4. We may point out, at the outset, that there is no dispute that the additional excise duty on sugar has been paid. The only dispute is that AED paid on sugar has not been passed on by the first stage dealers to the appellants because the duty paying documents, i.e., the invoices issued by the first stage dealers, did not show the element of AED. The Tribunal in its impugned order dated 09.06.2009 has remarked about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable in the instant case inasmuch as these Rules obviously came to be passed in the year 2004 whereas the period involved in the present case is 01.04.2000 to 09.10.2000. As there was no such requirement at the relevant period, the invoices issued by the first stage dealers naturally would not incorporate the element of AED (GSI). It is, thus, argued that the case of the appellants should have been decided by the Tribunal keeping in view the legal provisions, which were applicable at that time. 6. Learned counsel for the appellant has drawn our attention to Cenvat Credit Rules, 2002. The appellants have filed the copies of the invoices which were produced before the AO and an attempt is made by the learned counsel to show that additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have determined as to whether the burden of AED was passed on the appellants or not. That exercise has not been done by the AO. Even as per Sub-Rule (2) of Rule 9, the Cenvat Credit is not to be denied on the ground that any of the documents mentioned in sub-rule (1) does not contain all the particulars required to be contained therein under these rules, if such document contains details of payment of duty or service tax, description of the goods or taxable service, assessable value, name and address of the factory or warehouse or provider of input service. The Joint Commissioner of Central Excise or the Assistant Commissioner, as the case may be, can satisfy itself that the duty of excise or service tax due on the input or input se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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