TMI Blog2011 (1) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... the SAD which should have been indicated in the invoice, which has not been done so - Held that:- the input invoice was not available at the time of taking credit by the assessee - Decided against the revenue. - E/382/10 - - - Dated:- 4-1-2011 - Hon ble Mr. M.V.Ravindran, Member(Judicial) Mr. K.S. Chandrasekar, JDR for the Revenue. Mr. Lalit Mohan Chand, Consultant for the respondent. Per M.V. Ravindran This appeal is filed by the Revenue against the Order-in-Appeal No.53/2009(H-IV)CE dt. 24/11/2009. 2. The relevant facts that arise for consideration are that respondents are the manufacturers of bulk drugs falling under Chapter Heading No.29 of the Central Excise Tariff Act, 1985. They were availing the facility o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal. 3. Ld. DR would draw my attention to the grounds of appeal. He would submit that the grounds of appeal indicate that as per Rule 9 of CCR, cenvat credit can be availed on the basis of documents specified. He would submit that credit taken on mere note returned by Unit-I to Unit-II cannot be considered as credit taken on document. He would rely upon the decision of the Tribunal in the case of Guru Electro Cables Vs. CCE, Bangalore [2001(130) ELT 956 (Tri. Chennai)] and would also submit that the case laws relied upon by the ld. Commissioner(Appeals) were of different facts. 4. Ld. Consultant would submit that subsequently on 10/10/2009, the appellant issued another invoice indicating the discharge of entire amount of Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation cess. On being pointed out by the departmental audit team that they are also required to reverse the Additional duty of Customs on which they have availed credit, they have reversed an amount of Rs 2,14,663/-along with interest. They were under bonafide belief that there is no requirement of raising invoice under Rule 11 of central Excise Rules 2004, as they have already issued invoices at the time of transfer of materials, and therefore they did not raise any invoice at the time of transfer of Additional duty of customs. The Unit-II had taken credit basing on the statement issued by their head office. The lower authority denied the credit on the ground that there is no valid document for availing Cenvat credit under rule 9 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived by the appellant's factory, there is also no dispute on the duty paid character of the goods, and such goods have been used in or in relation to the manufacture of the final products, substantive benefit of Cenvat credit cannot not be denied on procedural lapses. I find in this case the above three conditions are fulfilled and hence the denial of credit by the lower authority on procedural lapse is not tenable. They have cited the Hon'ble Tribunal's decision in the case of Kesarwani Zarda Bhandar 2007 (219) E.L.T. 606 (Tri-Del) in support of their view, which however is distinguishable as the facts of this case are different from the facts of the present case. 7. As against the said findings, in the grounds of appeal, the Revenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant documents. Further, the Hon'ble Supreme Court in the case of M/s Mangalore Chemicals and Fertilisers Limited Vs Deputy Commissioner [1991(55) E.L.T.437(SC)] held that non observance of a procedural condition of technical nature was condonable, while non observation of a substantive condition is not condonable . Therefore, the Commissioner (Appeals) erred in holding that non-raising of invoice is a condonable procedural lapse in the present case. Commissioner (Appeals) relied on judgements of Hon'ble Tribunal in the cases of Kalyani Steels Limited Vs CCE, Belgaum [2007(212) E.L.T 129 (Tri- Bang)] and CCE, Ghaziabad Vs Magestic Auto Ltd. [2008 (230) E.L.T. 151(Tri-Del)].In the case of Kalyani Steels Limited the lapse involved w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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