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2015 (12) TMI 225 - PUNJAB AND HARYANA HIGH COURT

2015 (12) TMI 225 - PUNJAB AND HARYANA HIGH COURT - [2016] 88 VST 46 (P&H) - Benefit of input tax credit under section 8 of HVAT Act, 2003 - Held that:- Assessing Officer was not justified in declining the benefit of input tax credit only on the ground that the tax invoices did not contain the name of the buyer and also its TIN number. No doubt, non mentioning of the name and the TIN number can be a circumstance, but it cannot be held to be conclusively against the purchaser. The judgment cited .....

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A HIGH COURT)followed - Decided in favour of assessee. - VATAP No.41 of 2015 (O&M) - Dated:- 18-11-2015 - MR. AJAY KUMAR MITTAL AND MR. RAMENDRA JAIN, JJ. For The Appellant : Mr. S.K.Chaudhary, Advocate For The Respondent : Ms. Mamta Singla Talwar, DAG, Haryana with Shri Saurabh Mago, AAG, Haryana Ajay Kumar Mittal,J. CM No.17172 CII of 2015 1. There is a delay of 411 days in filing the appeal. Notice of the application was given to the respondents. After hearing learned counsel for the parties .....

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ort, the HVAT Act ) against the orders dated 29.4.2014, 10.9.2012 and 28.2.2008, Annexures A.3, A.2 and A.1 passed by respondent Nos. 2, 3 and 4 respectively for the assessment year 2004-05, claiming following substantial questions of law:- i) Whether in the facts and circumstances of the present case, the appellant is entitled to the benefit of input tax credit under section 8 of HVAT Act, 2003? ii) Whether before disallowing the input tax credit, the Assessing authority ought to have conducted .....

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der the Central Sales Tax Act, 1956 (in short, the CST Act ). It has been filing the prescribed quarterly returns and discharging its tax obligations in accordance therewith. It is engaged in the business of crushing stone builders into stone grit and dust which is used as other construction material. Proceedings for the assessment year in question i.e. 2004-05 were initiated as the case of the appellant was selected for scrutiny being stone crusher. The assessee was communicated notice in Form .....

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e invoice, it could ask for certificate in Form C. Aggrieved by the order, the assessee filed appeal before the Joint Excise and Taxation Commissioner (Appeals) Faridabad [JETC(A)]. Vide order dated 10.9.2012, Annexure A.2, the appeal was dismissed by the JETC(A). Still not satisfied, the appellant filed appeal before the Tribunal. Vide order dated 29.4.2014, Annexure A.3, the Tribunal dismissed the appeal. Hence the instant appeal by the appellantassessee. 5. We have heard learned counsel for t .....

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(w) (w) input tax means the amount of tax paid to the State in respect of goods sold to a VAT dealer, which such dealer is allowed to take credit of as payment of tax by him, calculated in accordance with the provisions of section 8; Section 2(zl) 'tax invoice' means an invoice required to be issued according to the provisions of sub-section (2) of section 28 by a VAT dealer for sale of taxable goods to another VAT dealer for resale by him or for use by him in manufacture or processing o .....

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oods, effected by him (i) to any dealer; (ii) to any other person on credit; (iii) to any other person on cash, where the sale price of the goods exceed one hundred rupees or such other amount not exceeding five hundred rupees, as may be prescribed, compulsorily, otherwise, on demand by such person, issue to the purchaser, where he is a VAT dealer to whom the goods are sold for resale by him or for use by him in manufacture or processing of goods for sale, a tax invoice, otherwise a retail/other .....

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n the delivery of the goods is complete or a month closes in between, he shall issue a consolidated tax invoice or retail/other sale invoice, as the case may be, showing the prescribed particulars, in respect of the goods sold during the month or part thereof, as the case may be; (b) maintain, in the prescribed manner, account of all sales not falling within clause (a); (c) in respect of every dispatch of goods otherwise than by sale, issue a delivery note at the time of the dispatch showing the .....

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ote: - Time is to be mentioned by stone crusher owners, quarry contractors/lessees in every case, and by other dealers in case the value of goods exceeds ten thousand rupees. (i) Full name and address of the selling dealer/consignor with his TIN, if any (ii) Nature of transaction - whether sale, consignment transfer or job work etc. (iii) Name and address of the purchaser/ consignee (in case he is a dealer registered under the Act, mention his TIN) (iv) Description of goods (v) Quantity of goods .....

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cle.) Signature of the selling dealer/consignor or his authorized signatory. Name in full and status 9. A combined reading of the aforesaid provisions shows that under Rule 54(3) of the HVAT Rules, the buyer is required to produce the tax invoice, its name and TIN number entered on it. However, the question would be whether the purchaser can be penalized where the seller does not comply with the same. In our opinion, the answer would be in the negative. The non mentioning of the buyer's name .....

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discharge the said onus by producing other sufficient evidence to show that the transaction was genuine and it had made payment of VAT to the seller. Moreover, it is not within the control of the purchaser to ensure that the tax invoice contains his name and TIN No. as it is issued by the seller. Unless a mandatory duty is cast on the seller to issue tax invoice with such particulars, the purchasers cannot be penalized for no fault of theirs. 10. The Gujarat High Court in Vimal Enterprise's .....

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Once the object for which a provision is enacted is satisfied merely venial or technical breach by itself should not permit the authorities to adopt a stand which frustrates the object for which the entire scheme of modvat has been framed. The endeavour must be to ensure that the scheme is made effective and not frustrated. In other words, the goods , which have been subjected to duty when used as inputs for manufacture of final product, should not be made to bear duty once again as that would .....

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ncerned.' 11. Similarly, the Bombay High Court in Marmagoa Steel Limited's case (supra) [2005(192) ELT 82 (Bom.)] recorded thus:- 10. For availing the credit of duty, what is required to be established under Rule 57G is that the inputs received are infact duty paid. The procedure set out in Rule 57G of the Central Excise Rules is to ensure that the credit is taken on the basis of duty paid documents. The bill of entry is one such document set out in Rule 57G. The said rule does not requi .....

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nied on the ground that the Bill of entry is not endorsed in the name of the appellant. Rule 57G does not require that for taking credit of duty, the bill of entry should be endorsed in the name of the claimant. Counsel for the revenue could not point out any provision of law in the Act or the Rules regarding the endorsement of bills of entry. In the absence of any provision regarding endorsement on the bill of entry, the credit of duty cannot be denied on the ground that the bill of entry is no .....

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eived and utilized by the appellant as inputs in its factory and that the importer has not utilized the credit of duty paid on the said goods. Thus, the appellant has established that the inputs received under the bills of entry were duty paid and therefore, the authorities below were not justified in denying the credit of duty to the appellant. The two decisions relied upon by the Tribunal do not support the case of the revenue. In the case of Balmer Lawrie & Co. (supra), the issue was not .....

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