TMI Blog2016 (2) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... Chatterjee Advs. for BPCL For the Respondent : Shri S Sharma, Commr (AR) ORDER Per H. K. Thakur Appeals No. E/154/2010 E/155/2010 have been filed by appellant M/s. Indian Oil Corporation Ltd against OIO No 03/CE/Commr/Kol-VI/2009 dt 15/12/2009 OIO No. 02/CE/Commr/Kol-VI/2009 dt 30/11/2009 respectively passed by Commissioner of Central Excise Kolkata-VI Commissionerate as Adjudicating authority. Appeal No. E/147/09 has been filed by the appellant M/s Bharat Petroleum Corporation Ltd (BPCL) against OIO No. 09/Commissioner/ CE/ Kol-VII/ ADJM/ 2008- 09 at 29/12/2008 passed by Commissioner of Central Excise. Kolkata-VII. As the issue involved in all these appeals is the same therefore all are being taken up for disposal under this Commissioner order. Sh. S. Chakrabarty (Advocate) Sh. Ravi Ragavan (Advocate) Appeared on behalf of appellants IOCL BPCL respectively. Sh. S. Chakrabarty appearing on behalf of IOC argued that issue involved in the present proceeding is taking of cenvat credit on the basis of endorsed bills of entry. Learned Advocate Submitted that Indian Oil Blending Ltd [IOBL] was a 100% subsidiary of IOC until the merger of the former with IOC o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the statutary records maintained by the appellants. That CBEC can not impose any restriction by way of Circular No. 179/13/-96/cx dt 29/02/1996 when all other conditions of the cenvat credit / Modvat Rules are fullfiled. That it has been constantly held in various judicial pronouncents that minor procedural lapses can not be made the basis for denying cevat credit. He relied upon the following case laws:- (i) CCE. Vs Pepsi foods Ltd [2010(254)ELT 284 (P H)] (ii) Vimal Enterprise vs UOI [2006(195) ELT 267 (Guj)] 2.1 Learned Advocate further argued that after September 1996 requirement of endorsed of bill of entry was done away with and also there was no power with CBEC to prescribe any other document for taking cenvat credit. That by such amendments carried out w.e.f 1/9/1996 Revenue itself is of the opinion that there is no difference between bill of entry endorsed bill of entry. He relied upon the case law of Bando India (P) Ltd vs CCE [2010(262)ELT 1103 (T)] to argue that there is no difference in the bill of entry endorsed bill of entry that the significance of endorsement is only to identity the person in whose name B/E has been endorsed. It was also h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He brought to the notice of the bench CBEC Circulars issued on the subject from time to time. That SCN was issued on 28/07/1999 is predominantly time barred. On merits be relied upon the following case laws to argue that endorsed bill of entry was proper documents for taking credit:- (i) Maramgoa Steel Ltd vs UOI [2005(192)ELT82(Bom)] as Affirmed Supreme Court [2008(229)ELT)481(SC)] (ii) CCC vs JCT Limited [2003(151)ELT 508 (P H)] (iii) Banto India Ltd Vs UOI[2010(262)ELT(103(1)] (iv) Twenty First Century Printers Vs CCE [2009(234)ELT 277] (v) CCE Vs National Steel Industries [2000 (38)ELT 449] (vi) Vimal Enterprise Vs UOI [2006(195)ELT 267(Guj)] 5. Sh. S. Sharma Commissioner (AR) appearing on behalf of the Revenue argued that with effect from 01/9/96 CBEC had no power to specify any other document to take cenvat credit under Rule - 57 G of the Central Excise Rules 1944 as per substitution made under Notf No. 14/96-CE (NT) dt 23/07/1996. He made the bench go through Paras 3.7 to 3.11 of the OIO dt 30/11/09. It was also his case that CBEC Circulars No. 441/7/99-CX 179/13/96-cx dt 29/02/1996 also prescribed endorsement attestation of bills of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing the credit under rule 57G/57T where:- (i) The Bill of Entry has been filed in the name of the registered office of the manufacturer for the inputs to be used in his factory. (ii) Imported goods lying in customs dock area/ bonded warehouse are diverted to manufacturing units in whose name Bill of Entry has not been filed. (iii) Domestic duties paid goods consigned to a manufacturing unit are diverted in whole or part from a duty paid godown of the manufacturer or such diversion is affected in transit. 2. The issue has been examined by the Board 3. It has been decided that credit should not be denied where the Bill Of Entry is in the name of the registered office/head office provided that:- (a) The entire consignment covered by the said Bill of Entry is received in the factory in original packed conditions. (b) Triplicate copy of Bill of Entry/duplicate copy of the Bill of Entry generated on EDI system is endorsed by the registered office/head office to the effect that consignment covered by the bill of Entry are delivered to the manufacturing unit for availing credit. 4. Where the imported goods. Are still in Customs dock area an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has been paid by M/s. Essar Gujarat Ltd. It is also not in dispute that M/s. Essar Gujarat Ltd. has not taken credit of the duty paid on 3314.159 M.T. of shredded steel scrap which is given on loan to the appellant. It is also not in dispute that the appellant has used the said shredded steel scrap taken on loan from M/s. Essar Gujarat Ltd. as inputs in its factory. The certificate issued by the Superintendent of Central Excise, Surat to the effect that the importer namely M/s. Essar Gujarat Ltd. has not taken credit of duty paid on the said 3314.159 M.T. is not doubted by the Excise authorities. Similarly, the certificate issued by the Superintendent, Central Excise, Panaji, Goa to the effect that the quantity of 3314.159 M.T. shredded steel scrap received by the appellant from M/s. Essar Gujarat Ltd. has been used as inputs in the factory of the appellant is also not doubted by the Excise authorities. In these circumstances, we are of the opinion, that in the facts of the present case, the appellant has established that the credit of duty on receipt of 3314.159 M.T. of imported shredded steel scrap from M/s. Essar Gujarat Ltd. has been taken in accordance with law. 10. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and, therefore, the said decision is distinguishable on facts. Similarly, the decision of the Tribunal in the case of Tata Iron Steel Co. Ltd. (supra) is also distinguishable on facts as the said decision is based on erroneous concession made by the Counsel for the appellant therein, that in the case of Balmer Lawrie Co. it is held that the Modvat credit is not available on the basis of endorsed copies of bills of entry. 6.2 Relying upon the above case law CESTAT Delhi in the case of Bando India (P) Ltd Vs CCE Delhi-III [2010 (262) ELT 1103 (Tri-Del) held as follows in Para- 31 for valid document under cenvat credit Rules 2002 2004. 31. The contention of the department that there is no provision for endorsement of the credit and therefore the appellants are not entitled to claim credit on the basis of the endorsement is devoid of substance for more than one reason. Firstly, the credit is taken not because of endorsement but on the basis of bill of entry which also disclosed the name of the appellant, apart from the fact that the goods accompanying the Bill of entry were subjected to the payment of duty, and on clearance, were directly transported to the appellant& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Learned AR during his arguments submitted that the factum of receipt of entire consignments and their use in the manufacture of dutiable finished goods was not examined by the Adjudicating authorities. In the interest of justice we remand their case to the Adjudicating authorities only with respect to verification of receipt of entire consignments their utilisation in the manufacture of dutiable finished goods. Needless to say that appellants should be granted a personal hearing before deciding the case in remand proceedings and appellants should produce all the records available with them to justify that the entire consignments were received utilised in the manufacture of dutiable finished goods. 7. Appeals filed by the appellants are allowed by way of remand to the Adjudicating authority only on the limited verifications in view of the observations contained in Para 6.4. (Pronounced in the court on 2.11.2015) IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL EAST ZONAL BENCH, KOLKATA CORRIGENDUM I.O.C Vs C.C.E, KOLKATA-V Appeal No.E/154/2010 And E/155/2010 (Arising out of the order in original No. 02/CE/Commr./Kol-Vi/2009, Dated 30.11.2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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