TMI Blog2010 (6) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... nly to amend the name of consignee and nothing more. And, it is not the case of the department that on endorsement of the Bill of entry in favour of the appellant, it was, in any manner, rendered to be invalid document or that the import under such document become unlawful. Credit allowed - decided in favor of assessee. - E/2967/2009 - Final Order No. 512/2010-EX(PB) - Dated:- 11-6-2010 - R.M.S. Khandeparkar and Shri Rakesh Kumar, JJ. Shri L.P. Asthana, Ms. Reena Khair and Abhishek Jaju, Advocates, for the Appellant. Shri Anil Khanna, DR, for the Respondent. ORDER This appeal is being heard in terms of order passed today in Stay application No. 3056 of 2009. 2. This appeal arises from the order dated 13-8-2009 passed by the Commissioner (Appeals) Gurgaon dismissing the appeal filed by the appellants against the order of the adjudicating authority dated 29-12-2008. By the said order, the adjudicating authority had confirmed the demand to the tune of Rs. 16,63,268/- alongwith interest thereon and had imposed equal amount of penalty against the appellants. The claim has been confirmed on the ground that the appellants had wrongly availed cenvat credit on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional duty of customs (CVD) paid under the aforesaid Bill of Entry, with due intimation to the Department in the ER-1. 9. On January 2, 2008 the Additional Commissioner of Central Excise issued a notice to the appellants proposing to disallow the credit on the ground that the same was not taken on a valid document as specified in Rule 7/Rule 9 of the Cenvat Credit Rules, 2002/2004. The notice called upon the appellants to show cause as to why duty amounting to Rs. 16,63,268/- should not be demanded and recovered from them by invoking the proviso to Section 11A of the Act. The notice also proposed to levy interest and to impose penalty. 10. In response to the notice, it was the case of the appellants that the goods were imported for the appellants factory and were routed through Mitsui only for convenience. The payment through Mitsui was reimbursement of the cost of the equipments and therefore credit was correctly availed. 11. The adjudicating authority rejected the defence raised by the appellants and confirmed the demand as stated above. The appellants appeal against the same before the Commissioner (Appeals) also failed and hence the present appeal. 12. Learned Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f entry had been in the name of the contractor and, therefore, on the basis of such document and taking into consideration the provisions of the said Rules, the appellants were not entitled to avail the cenvat credit. 16. It is an undisputed fact that the bill of entry was issued in the name of the contractor with a rider that notify M/s. Bando India (P) Ltd., . It is also apparent from the records that the bill of lading disclosed the consignee to be the contractor alongwith the name of the appellants in the bracket stating that the consignment was on account of the appellants. It is also undisputed fact that the contractor had not taken the credit in relation to the duty paid on the said goods. Likewise, the facts that the said goods were received in the factory of the appellants on clearance thereof and were utilized for installation and setting up of the appellants factory are not in dispute. Undisputedly, the credit availed corresponds to the amount of duty paid on the imported goods. 17. Copy of the Letter of Intent dated 15-6-2003, issued in favour of the contractor further discloses that the Bando (Singapore) Pvt. Ltd. were the promoters and proposed to set up a compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case may be, by the Superintendent of Central Excise within whose jurisdiction such manufacturer has his factory or the supplier has his place of business, and where the identity and address of the manufacturer or the supplier is satisfied on the strength of a certificate, the manufacturer or producer taking CENVAT credit shall retain certificate for production before the Central Excise Officer on demand. 20. Rule 9(1) of the CENVAT Credit Rules, 2004 similarly provides that the CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of an invoice issued by an importer as also on the basis of bill of entry. 21. Sub-rule (1A) of Rule 7 of the CENVAT Credit Rules, 2002 provides that the cenvat credit under Rule 3 shall not 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 those Rules, if such document contains details of payment of duty, description of the goods, assessable value, name and address of the factory or warehouse provided that the Assistant Commissioner of Central Excise or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the manufacturer and the contractor had not availed any credit in respect of the duty paid on such goods. Therefore, merely because the invoice discloses the name of the contractor alongwith that of the consignee, but the documentary materials placed before the authority establish to the satisfaction of the adjudicating authority that the goods which described in the invoice were in fact received in the factory of the consignee/manufacturer and those goods were subjected to payment of duty as disclosed in the invoice and further that the goods were utilized or were to be utilized by the manufacturer, certainly the credit in relation to duty paid on such goods cannot be disallowed to such manufacturer. 24. The Punjab Haryana High Court in Commissioner of Central Excise, Ludhiana v. Ralson India Ltd. reported in 2006 (202) E.L.T. 759 (P H) = 2008 (10) S.T.R. 505 (P H), while dealing with a substantial question of law as to whether Modvat Credit on original documents, which were not prescribed documents, could be availed without following the procedure laid down in that regard, after taking note of the provisions of law comprised under Rule 57G and in particular sub-rules ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant as inputs in its factory and that the importer has not utilized the credit of duty paid on the said goods. Thus, the appellant has established that the inputs received under the bills of entry were duty paid and, therefore, the authorities below were not justified in denying the credit of duty to the appellant. The two decisions relied upon by the Tribunal do not support the case of the revenue in the case of Balmer Lawrie Co. (supra), the issue was not relating to the endorsement on the bills of entry and, therefore, the said decision is distinguishable on facts. Similarly, the decision of the Tribunal in the case of Tata Iron Steel Co. Ltd. (supra) is also distinguishable on facts as the said decision is based on erroneous concession made by the Counsel for the appellant therein, that in the case of Balmer Lawrie Co. it is held that the Modvat credit is not available on the basis of endorsed copies of bills of entry . 26. The Apex Court while approving the said view taken by the Bombay High Court in relation to the entitlement of the manufacturer for modvat credit on the basis of the bill of entry had observed thus :- 10. On reading Rule 52A the posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en established by documentary evidence on record, we are of the considered opinion that the authorities below clearly erred in refusing the appellants to avail credit which was claimed by the appellants on the basis of the bill of entry in question. 28. Similar view was taken by the Punjab Haryana High Court in Commissioner of Central Excise, Ludhiana v. Ralson India Ltd. reported in 2006 (202) E.L.T. 759 (P H) = 2008 (10) S.T.R. 505 (P H) wherein it was held that if the duty paid character of inputs and their receipt in manufacturer s factory and utilization thereof for manufacturing final product is not disputed, then credit cannot be denied. 29. Similar was the view expressed in Commissioner of C. Ex., Delhi-Ill, Gurgaon v. Myron Electricals Private Limited reported in 2007 (207) E.L.T. 664 (P H) = 2008 (11) S.T.R. 85 (P H). Therein the credit was sought to be denied on the ground that the registered dealer had stopped functioning from the registered premises w.e.f. 30-9-1999, whereas the credit was sought to be taken for the period from January 2000 to August 2000. It was held that if the goods were actually received, the payment of duty and utilization of goods was verif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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