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2015 (11) TMI 1242 - CESTAT MUMBAI

2015 (11) TMI 1242 - CESTAT MUMBAI - TMI - Denial of CENVAT credit - Endorsement of Invoices - Invoices of “Furnace Oil” issued by three different suppliers, on the ground that the invoices are not permitted to be endorsed and CENVAT credit is not admissible on such endorsed invoices - Held that:- Input i.e. Furnace Oil’ was supplied to the unit of M/s Vipras Corporation Ltd. which was taken over by the appellant and they were carrying out manufacturing activity when received the input along wit .....

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or this reason M/s Vipras Corporation Ltd. endorsed the invoices in favour of the appellant, it is also fact that M/s Vipras Corporation Ltd. is sister 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 Petit .....

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els 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 Corporation Ltd. endorsed the duty paying invoices in favour of the appellant. A show-cause notice No. V/PI/RGD/Gr-IV/12-33/2011 Part-I dated 03.04.2012 was issued to the appellant, proposin .....

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is before this Tribunal. 3. Shri Prashant Patankar, learned Counsel for the appellant submitted that the appellant took over the factory premises of M/s Vipras Corporation Ltd. and started the production activity in the said premises. As regard the taking over of forging unit by the appellant from M/s Vipras Corporation Ltd, the appellant had informed to the adjudicating Authority vide letter dated 10.08.2006 wherein the copy of agreement between both the unit was submitted. He submits that sinc .....

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ooks of account of the appellant. It is also not in dispute that on the said invoices neither M/s Vipras Corporation Ltd. nor any other party has availed CENVAT credit. He submits that as per the above facts, the input covered under the 19 invoices belongs to the appellant and the same was used by the appellant in the manufacture of the final product. He submits that it is permissible to avail the credit on the endorsed invoices, particularly in the above mention facts and circumstances. In supp .....

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td. - 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 .....

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e taken only by the person in whose name the invoices were issued. He placed reliance on the following judgements:- (i) Commissioner of Central Excise, Indore Vs. Shubham Thionyl - 2005 (192) ELT 163 (Tri.-Del.) (ii) P.C.C. Pole Factory Vs. Commissioner of Commissioner, Raipur - 2004 (176) ELT 377 (Tri.- Del.) 4. I have carefully considered the submissions made by both sides. From the facts, I find that in the present case the input i.e. Furnace Oil was supplied to the unit of M/s Vipras Corpora .....

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ices paid only by the appellant to the supplier. From these facts, it is clear that the buyer of the goods is the appellant and for this reason M/s Vipras Corporation Ltd. endorsed the invoices in favour of the appellant, it is also fact that M/s Vipras Corporation Ltd. is sister concern of the appellant. I am of the view that when the unit of M/s Vipras Corporation Ltd. was taken over by the appellant, the input received, thereafter in the premises of the unit which was taken over, the appellan .....

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wed. The judgement relied upon by the appellant are squarely applicable in the present case. Moreover, in most of the judgements the two units are separate and having different location, but in the present case, the most important fact 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 .....

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tually 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. Flex Industries Ltd., 2004 (178) E.L.T. 1029 (Tri.-Del.). (ii) CCE, Coimbatore .....

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ent inasmuch as it is a transfer of the consignments of the inputs by two sister concerns of the same parent unit namely National Textile Corporation Ltd. There is no sale between the two units. Hence, the ratio of the Larger Bench decision will not be applicable. Revenue has not doubted nor disputed that the consignments of the inputs in question was duty paid and was duly received in the Respondent s factory and utilised in the manufacture of their final product which was cleared on payment of .....

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taken as valid document for taking Modvat credit. This has been consistent view of the Tribunal and is supported by the Tribunal s decision in the case of CCE v. Coimbatore Murugan Mills (supra). Regarding the other issue that on two invoices, there is no print of duplicate for transporter , I find that there is a rubber stamp on the invoice duplicate for transporter and such a rubber stamp has been accepted as valid by the Tribunal in the various decisions. Therefore, only on this ground, cred .....

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en 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 offi .....

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ecially when there is no doubt or dispute about the receipt of the inputs by the appellants in their factory, their utilisation in the manufacture of the final product and clearance of the final product on payment of duty. 8. We also take note of the Larger Bench decision in the case of Kamakhya Steels Ltd. v. CCE - 2000 (121) E.L.T. 247 wherein the Tribunal, after taking note of the Board s circular, has observed that the minor procedural lapses, if any, should not be made the basis for denial .....

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the light of the judgment of the Hon ble Bombay High Court in Simplex Mills Co. Ltd. v. CCE, Mumbai-IV - 2007 (81) RLT 331 (Bom) following the earlier judgment of the same High Court in Marmagoa Steel Ltd. v. UOI - 2005 (192) E.L.T. 82 (Bom.). The High Court has held that if there is no dispute regarding the duty paid nature of the inputs and the inputs have undisputedly been received in the factory and the assessee has taken credit, that is sufficient for the purpose of availment of credit and .....

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eady been upheld, and accepted by the appellants. The penalty imposed on these two counts is ₹ 45,816/-. I accordingly reduce the penalty to ₹ 45,816/-. 5. From the above judgements, I find that the appellant s case is on better footing on comparison with cited judgements and facts of the present case, therefore the ratio of the judgements are squarely 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 ca .....

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