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TMI Blog2011 (1) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... ; They were availing cenvat credit of excise duty and service tax paid on the inputs and input services received. During the scrutiny of the ER-2 returns, the cenvat documents and records for the month of May, 2008, it was noticed that the respondents took cenvat credit of inputs to the tune of Rs.2,14,663/- vide entry no.128/9 without proper documents but only on a noting that "Additional duty credit from Unit-I". On enquiry, the respondents vide their letter dt. 16/3/2009 informed that the amount was taken as credit since there was a debit entry to the effect in RG23A Part-II of their Unit-I situated at Gaddapotharam village, Jinnaram Mandal, Medak District. The lower authority denied the said credit on the ground that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Duty of Customs (SAD) in favour of the unit No.2. He produced a copy of the said invoice which was produced before the ld. Commissioner(Appeals). 5. I have considered the submissions made by both sides and perused the records. 6. The issue involved in this case is whether the respondent is eligible to avail Cenvat Credit of the SAD which was not indicated on the invoice when the entire material was transferred to Unit No.2. It is undisputed that the inputs on which credit of CVD and SAD was availed at the Unit No.1 was received and recorded. It is also undisputed that the entire stock of the inputs was transferred to Unit No.2. It is also undisputed that while transferring the entire stock of inputs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Cenvat credit under rule 9 of the Cenvat Credit Rules,2004. After the passing of the impugned order by the lower authority the appellants raised invoice No. 0262 dated 10.10.09 in the name of Unit-11 belatedly. The short issue to be decided by me is whether the appellants are entitled to take credit of the Additional Duty of Customs transferred by the Unit-I without proper Invoice. It is an undisputed fact that they have transferred the imported material from the Unit-I to Unit-11 after reversing the CVD and educational cess by raising invoices and the same was received and accounted for in Unit-11. It is also undisputed fact that they have reversed the Additional Duty of customs of Rs 2,14,663/- on 28.11.07 along with interest and sent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he grounds of appeal, the Revenue has only contested that the credit availed by the Unit No.2 / the respondent herein was not in accordance with Rule 9 of the Cenvat Credit Rules, 2004. It is on record that subsequent to audit query being raised, the appellant had issued invoice No.262 dt. 10/10/2009 for the entire amount of duty which was taken as credit by Unit No.2 on 28/11/2007. It can be seen from the grounds of appeal which are reproduced herein below, that the Revenue has not disputed the fact that the respondent Unit No.2 is eligible to avail the credit of the SAD which should have been indicated in the invoice, which has not been don so. "1. The Order-in-Appeal No 53/2009 (H-IV) CE dated 24.11.2009 passed by the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yani Steels Limited the lapse involved was with regard to the six motors which were interchanged due to printing error in the invoices. In the case of Magestic Auto Limited, the company name was not mentioned on the invoices. Whereas, in the present case, the input invoice was not available at the time of taking credit by the assessee. Therefore, the rationale of the above case law is not applicable to the present case as the facts and circumstances are different. Therefore, reliance on the above case law by -he Commissioner (Appeals) is misplaced." 8. In the absence of any effective challenge to the factual matrix hereinabove recorded, I find that the impugned order passed by the ld. Commissioner(Appeals) is correct and legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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