TMI Blog2013 (3) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... to be used in process of manufacture. Circulars and clarifications issued by C.B.E. & C. are binding on the Excise & Customs authorities as per various judgments of Supreme Court. However Deputy Commissioner has not followed the said Circulars in which it was categorically mentioned that AC/DC of the jurisdiction, before issuing Show Cause Notice for wrong availment of Modvat credit shall conduct enquiries with regard to duty paid nature of the goods as the goods as the suppliers send, ensure that necessary information as mentioned in the Notification are available on the invoice and satisfies himself whether the goods have been used or are intended to be used as contemplated in the Modvat Rules. Thus in the present case Dy. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority s order in disallowing the CENVAT Credit involved in this case however upheld the penalty of Rs. 5,000/- imposed under rule 27 of Central Excise Rules, 2002. 2.1 Briefly stated the facts of the case are that while registering themselves as a dealer under the purview of Central Excise laws, declared that their godown is situated within the factory premises of M/s. Besco Ltd., unit-I, Foundry Division. The said dealer did not commence any activity as a dealer prior to March 2009. In the month of March 09 they issued 06 nos. of Cenvatable invoices consigning the goods to the said Besco Ltd. On verification of returns filed by the respondents it was found that the respondents issued invoices showing sale of goods to the said M/s. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely a procedural requirement but a mandatory and essential requirement. In support of his contentions ld. AR for the Revenue placed reliance in the case of CCE v. Spectra Electronics Pvt. Ltd. - 2009 (235) E.L.T. 795 (H.P.) and Speedways Rubber Company v. CCE, Jalandhar - 2007 (6) S.T.R. 112 (Tri.-Del.) = 2007 (211) E.L.T. 255 (Tri. - Del.). The contention is that requirement of intimating the serial no. of invoice before being brought to use was equally essential and not merely a technical breach. 4. The contention of the respondent is that the decision of Hon ble Himachal Pradesh High Court in the case of Spectra Electronics Pvt. Ltd. (supra) relied upon by the department relates to Rule 52A and 57GG of erstwhile Central Excise Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of invoices issued for the period of March 2009. I find that the appellant started working as dealer from March 2009. No objection has been raised in respect of the said 06 invoices as issued by them during March 09. It is seen that particulars such as RG 23D register Sl. Nos. and pro-rata duty element are not mentioned in the said dealer s invoices for March 09 also. As they have started working as dealer for the first time from March 09 only, therefore Range Superintendent should have guided them relating to procedural mistake and rectify the same as the appellant has submitted quarterly returns before him in due time and no objection is there in the subject SCN in this regard. Particulars of the suppliers were mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the manufacture of final products. So long as these requirements are present and shown to be satisfactorily complied with, the others are of subsidiary importance. C.B.E. C. vide Circular No. 441/7/99-CX., dated 23-2-1999 has clarified that Cenvat credit should not be denied for minor procedural lapse. However, AC/DC should ensure that inputs/capital goods have suffered duty and are being used/are to be used in process of manufacture. Circulars and clarifications issued by C.B.E. C. are binding on the Excise Customs authorities as per various judgments of Supreme Court. However Deputy Commissioner has not followed the said Circulars in which it was categorically mentioned that AC/DC of the jurisdiction, before issuing Show C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly numbered. Therefore, I hold that the appellant have fulfilled the requirement of Cenvat Credit Rules, 2004. Accordingly, they are entitled to avail input credit on the strength of the invoices in question. 5.4 The Tribunal in the case of Pepsico India Holdings Pvt. Ltd. (supra) has held a similar view. 5.5 Board vide Circular No. 441/7/99-CX., dated 23-2-1999 has clarified that show cause notice should not be issued on technical lapses. In these circumstances I do not find any reason to interfere with ld. Commissioner (Appeals) s order therefore the order is upheld in toto and the appeal, which is devoid of any merit, is dismissed. (Operative part of the order was pronounced in the open court) - - TaxTMI - TMITax - Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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