TMI Blog2015 (11) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... ister concern of the appellant. - invoice was endorsed by the sister concern of the appellant and the premises of which the goods were consigned is under the possession of the appellant - appellant is entitled to CENVAT credit - Decided in favour of assessee. - Appeal No. E/88239/13 - - - Dated:- 10-3-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri Prashant Patankar, Consultant For the Respondent : Shri V.K. Shastri, Asst. Commr. (A.R.) ORDER Per: Ramesh Nair The appeal is directed against Order-in-Appeal No. US/132/RGD/2013 dated 22.05.2013 passed by the Commissioner of Central Excise (Appeals), Mumbai, wherein the learned Commissioner while upholding the Order-in-Original No. Raigad/ADC/105 (DG)/12-13 dated 31.01.2013, rejected the appeal of the appellant. 2. The fact of the case is that the appellant M/s Goradia Special Steels Ltd. (formerly known as M/s Vipras Castings Ltd.) is registered with Central Excise Department in the name of M/s Vipras Corporation Ltd. The appellant has availed CENVAT credit in respect of input Furnace Oil on duty paying invoices which were issued in the name of M/s Vipras Corporation Ltd. M/s Vipras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (160) ELT 825 (Tri.-Chennai) (iii) CCE, Noida Vs. Flex Industries Ltd. - 2004 (178) ELT 1029 (Tri.-Delhi) (iv) Zenith Weavers Pvt. Ltd. Vs. CCE, Surat - 2004 (177) ELT 251 (Tri.-Mumbai) (v) Gautam Weaving Mills Vs. CCE, Belapur - 2008 (230) ELT 147 (Tri.- Mumbai) (vi) Union of India Vs. Marmagoa Steel Ltd. - 2008 (229) ELT 481 (S.C.) He further submits that the demand is time barred for the reason that there is no suppression of fact on the part of the appellant. The issue whether CENVAT credit is admissible on the endorsed invoices have been dealt number of times in various judgment and also through Circular. Therefore the appellant was of a bonafide belief that the credit on the endorsed invoices is admissible. Hence, under such position of law malafide intention to evade payment of duty is not established in the present case. In this support he placed reliance on the following case laws:- (i) Padmini Products Vs. CCE - 1989 (43) ELT 195 (S.C.) (ii) Chemphar Drugs Liniments - 1989 (40) ELT 276 (S.C.) 3. On the other hand Shri V.K. Shastri, learned Assistant Commissioner (A.R.) appearing on behalf of Revenue, reiterates the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is both sister concern and the unit of M/s Vipras Corporation Ltd. was taken over by the appellant. The relevant judgements are reproduced below:- (i) Raj Rayon Vs. CCE, Vapi - 2009 (274) ELT 808 (Tri.- Ahmedabad) 4. After hearing the learned SDR Shri J.S. Negi. I find that there is no dispute about the factual position. The inputs were actually received by the appellant and utilised by them in manufacture of final product. Admittedly, the inputs were duty paid and covered by the invoices, which were in the name of M/s. Raj Rayon only. There was difference in the address of the recipient inasmuch as the address of Unit 3 was shown instead of Unit 2. As per the remarks on the invoices, Unit 3 diverted the entire consignment to the present appellant who actually received in their factory. As such, it cannot be said to be a case of endorsement of invoices. Tribunal in case of Zenith Weaves Pvt. Ltd. v. CCE Surat 2004 (177) E.L.T. 251 (Tri.-Mum.), has held that invoices addressed in respect of assessee s kim factory, but goods delivered at Surat factory, cannot be made basis for denial of Modvat credit. To the same effect, is Tribunals decision in case of CCE, Noida v. Fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sides. As regards the first issue, we find that the endorsement on the invoices is by the depot of the same manufacturer. The Tribunal in the case relied upon by the appellant has held that when there is no in between buyer of the inputs and the endorsement is by the manufacturer s own depot, the ratio of the Larger Bench decision would not be applicable. As regards the other invoices, it is seen that though the address on the invoices is that of their Kim factory, the said invoices mentioned that the inputs are to be delivered at the Surat factory. In these circumstances, the Tribunal s decision in the case of Larsen Toubro Ltd. holding that when the invoices have been issued in the name of the office but the goods are received in the factory, the same would constitute proper modvatable documents, have to be applied. As regards the Modvat credit taken on the basis of certificates issued by the Superintendent prior to 31-3-1994, it is seen that the notification itself provides for taking credit on the basis of such documents provided the credit is taken before 30-6-1994. As such, we do not find any lapse on the part of the appellant to avail the credit on the basis of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarely applicable. As regard the case laws of Shubham Thionyl (supra) and P.C.C. Pole Factory (supra) relied upon by the learned A.R., on carefully reading, I find that in case of Shubham Thionyl (supra) the endorsed invoice was issued by the intermediary purchaser. Whereas in the present case the invoice was endorsed by the sister concern of the appellant and the premises of which the goods were consigned is under the possession of the appellant, therefore the facts of the Shubham Thionyl (supra) case is different from the facts in the present case, hence the same is distinguished. As regard P.C.C. Pole Factory case (supra) the judgement was passed relying on the judgement of Balmer Lawrie Co. Ltd. Vs. Commissioner of Central Excise, Kanpur - 2000 (116) ELT 364 (Tri.-Delhi) passed by the Larger Bench of this Tribunal. It is found that the Larger Bench judgement of Balmer Lawrie Co. Ltd. (supra) case has been overruled by the Hon'ble High Court of Gujarat in the case of Vimal Enterprise Vs. Union of India - 2006 (195) ELT 267 (Guj.), wherein it was held:- 19. The Larger Bench decision of the Tribunal in case of Balmer Lawrie Co. Ltd. v. Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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