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2015 (9) TMI 980 - CESTAT MUMBAI

2015 (9) TMI 980 - CESTAT MUMBAI - TMI - Disallowance of CENVAT Credit - duty paying document - Demand of interest - Held that:- Invoices, on which credit was disputed was issued by manufacturer and the appellant’s name is clearly appearing as consignee therefore the invoices in question squarely covered by clause (a) of sub rule 1 of Rule 9. I do not agree with the Revenue’s contention that in case of purchase of input from dealer invoices should be issued by first stage dealer or second stage .....

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ch cases credit is admissible on these invoices and there is no need of separate invoices to be issued by the registered dealer for taking credit.

For taking Cenvat Credit on input it is not mandatory that payment towards purchase of the input has to be made. There are number of transactions in the trade such as procurement input from group company, sister concern on payment of duty procurement of input for job work etc. in such transaction there is no transaction of any payments tow .....

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ugned order - Decided in favour of assessee. - APPEAL NO. E/899/12-MUM, E/85528/13-MUM - Dated:- 15-5-2015 - Mr. Ramesh Nair, J. For The Appellant : Ms. Anjali Hirawat, Advocate For The Respondent : Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) Per : Ramesh Nair These two appeals are directed against followings orders:- SR. NO. APPEAL NO. AGAINST ORDER ORDERS-IN-APPEAL NOS Vide show cause notice Original order upheld by the Ld. Commissioner (Appeals) 1 E/85528/13-MUM NO. BC/345/M-III/2012 dtd. .....

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ordered recovery of interest, and imposed penalty of equal amount of duty. F.No. V.Adj /W-I/SCN/15-78/Aplab/2011-12/1457 dated 6/5/2011 The demand of Cenvat Credit of ₹ 2,14,179 /- ordered recovery of interest, and imposed penalty of equal amount of duty. The facts of the case is that appellant being manufacturer availed Cenvat credit on the invoices wherein appellant name appearing as consignee and in the column of the buyer, name of the dealer M/s. Somaiya Steel Corporation/ M/s. Hansraj .....

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e adjudicating authority, demand of Cenvat Credit, imposition of penalty of equal amount and interest were confirmed by order in original dated 30/3/2012. Aggrieved by the said order, appellant filed appeals before the Commissioner(Appeals) who vide impugned order dated 25/10/2012 modified the order-in-original inasmuch as maintained confirmation of demand of Cenvat Credit however reduced the penalty to ₹ 1 lakh and maintained demand of interest. Aggrieved by the said order, the appellant .....

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d M/s. Hansraj Karsanraj & Co., have not issued invoices in the capacity of first stage or second stage dealer, on this count credit was denied. She submits that it is general trade practice that sale invoices contains two column which is as per prescribed format that one column for name and address for the buyers and second is for name and address of consignee. In such case appellant being consignee of the goods, they are entitled to credit irrespective of the fact that as per that invoices .....

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credit was taken is invalid for the reason that it was not issued by first stage or second stage dealer. Since invoices were issued by the manufacturer against payment of duty and that invoices shows the appellant as consignee there is no need of any invoices of first stage or second stage dealer. She also submits that for availment of credit it is not necessary that there should be direct sale purchase transaction under Cenvatable invoices then only Cenvat Credit can be allowed. So long name o .....

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gnee and buyer was involved and credit was allowed. She submits that in the following judgments it has been held that the payment towards input procurement, purchase of input is not criterion of availment of credit. (a) Exide Industries Ltd. Vs. CCE [2008(226) ELT 249 (Tri- Kolkata] (b) CCE Vs. Vishnu Chemicals Pvt. Ltd. [2009(245) ELT 397(Tri- Mum.)] (c) Hindalco Industries Ltd. Vs. CCE. [Cestat order No. S-248/A-329/KOL/2009 dated 11/6/2009] 3. On the other hand, Shri. Ashutosh Nath, Ld. Asstt .....

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anufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely :- (a) an invoice issued by- (i) a manufacturer for clearance of - (I) inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (II) inputs or capital goods as such; (ii) an importer; (i .....

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s, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any .....

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ms Tariff Act; or (c) a bill of entry; or (d) a certificate issued by an appraiser of customs in respect of goods imported through a Foreign Post Office; or (e) a challan evidencing payment of service tax by the person liable to pay service tax under sub-clauses (iii), (iv), (v) and (vii) of clause (d) of sub-rule (1) of rule (2) of the Service Tax Rules, 1994; or (In clause (e) the words, brackets and figures "sub-clauses (iii), (iv), (v) and (vii)" has been amended vide Notification .....

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3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be allowed if the invoice or the supplementary invoice, as the case may be, bears an indication to the effect that no credit of the said additional duty shall be admissible; [ inserted vide Notification No. 35/2007 - CE(NT), dated 14-09-2007 ] 10/2007 - CE(NT), dated 01-03-2007 ] From the plain reading of the above Rule 9, which prescribed documents on which Cenvat credit is allowed, it can be seen one of the document as mentioned in claus .....

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or second stage dealer. In my view only in case where the input is purchased directly from a dealer on his invoices and the manufacturer invoices is not indicated the name of the recipient as consignee the first stage dealer or second stage dealer as case may be is registered with Central Excise should issue invoices as provided under Rule 11 of Central Excise Rules, 2002. However, in the present case invoices on which credit was taken issued by manufacturer and appellants name is appearing as .....

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