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2016 (5) TMI 1239 - CESTAT CHENNAI

2016 (5) TMI 1239 - CESTAT CHENNAI - TMI - Eligibility of Cenvat credit - received material from HMIL and had paid duty which was indicated in the invoice - took credit based on the proper invoice issued by HMIL - HMIL paid the said duty and the goods were cleared under the cover of the said invoice - Held that:- the appellant’s contention is that there is nothing on record to show that the assessment of HMIL has been questioned by their jurisdictional officers, it would not be proper for any ot .....

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ired to be reversed by HMIL, when that is the position, it is not known as to how he can come to a conclusion that the appellant is not eligible to take credit of the amount mentioned in the invoice. As rightly pointed out by the appellant that the jurisdictional officers of HMIL have not disputed the duty paid and the alleged excess payment has not been granted as refund. Therefore, both the lower authorities have erred in denying the credit to the appellant. - Period of limitation - Invok .....

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ceeds on limitation also as no credit in excess of the amount mentioned in the invoice was taken by them. - Decided in favour of appellant - Appeal No. E/40326/2015 - Final Order No. 40701 / 2016 - Dated:- 3-5-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Appellant : Shri J. Shankararaman, Advocate For the Respondent : Shri. S. Mohan, AC (AR) ORDER M/s PHA India (P) Ltd., hereinafter referred to as the appellant, are engaged in the manufacture of Automobile parts . The appellant had manufa .....

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l valued at ₹ 2,15,543/-. It was stated that it is not possible to ascertain the actual amount which is required to be reversed by M/s Hyundai Motor India Limited (HMIL) as per Rule 3(5) of CENVAT Credit Rules, 2004 and further the exact amount which is eligible for credit to the appellant. The show cause notice alleged that the appellant wrongly availed the above credit during the month of March 2009 and demanded the above credit by invoking proviso to Section 11A(1) of the Central Excise .....

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above order, the appellant preferred an appeal before the Commissioner of Central Excise (Appeals) and the same was rejected vide Order-in-Appeal 24/2014 (M-IV) dated 19.11.2014. 5. Heard both sides in the matter. The appellant was represented by learned Advocate Shri J.Shankarraman who contended that there is no dispute with regard to the fact that the appellant availed credit based on a valid excisable invoice issued by HMIL and the credit taken was not more than the duty reversed and shown in .....

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to take credit of the amount mentioned in the invoice. In any case appellants officers do not have jurisdiction to question the assessment of HMIL. The payment made by HMIL can be questioned by the officers having jurisdiction over their unit and not by the officers having jurisdiction over the appellant. The payment made by HMIL has not been refunded or reassessed by the Department and therefore it would be incorrect to deny the entire credit to the appellant. In any case the appellant took t .....

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ken excess credit as against lesser payment made by the supplier with an intention to evade. He also relied upon the decision of the Tribunal in the case of CCE, Chennai - III Vs Nagappa Springs Ltd. 2009 (238) E.L.T. 489 (Tri. - Chennai) and also Hon ble Supreme Court judgement in the case of CCE & C V. MDS Switchgear Ltd., reported in 2008 (229) E.L.T. 485 (S.C.). 6. On the other hand the Learned A.R. Shri S. Mohan A. C. besides reiterating the findings of the Commissioner (Appeals), conte .....

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xpected that they shall discharge their burden dutifully. Hence invoking of larger period is correct. The AR further contented that the reliance on various decisions placed by the appellant are not relevant to the facts of the present case. 7. The learned Advocate in his rejoinder submitted that the judgement of the Hon ble Gujarat High Court cited supra was a case where the officer having jurisdiction over the factory held that the excess payment is incorrect. In the present case the officer ha .....

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ia Ltd. (HMIL) had paid the said duty and the goods were cleared under the cover of the said invoice. It is also not under dispute that they are registered with the Central Excise Department. The appellant s contention is that there is nothing on record to show that the assessment of HMIL has been questioned by their jurisdictional officers, it would not be proper for any other officer to comment on the said payment has not been stated to be wrong or an erroneous proposition of law by the Revenu .....

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tilized the credit for payment of duty on springs manufactured by it. The statutory provisions allow an assessee to avail duty paid on inputs when it receives them in its factory. Even if the jurisdictional authorities at the supplier manufacturers end assessed the duty on the inputs incorrectly, the authorities having jurisdiction over the recipient manufacturer cannot reopen the assessment reflected in the invoices. As long as the respondent manufacturer had taken reasonable steps to know the .....

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isdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of respondent unit [2000 (120) E.L.T. 379 (Tribunal) = 2000 (38) RLT 179]. I do not find any provision in the statute which prohibits the respondent manufacturer of inputs from availing credit of duty paid by it as evidenced by the invoices covering the consignments of inputs. Revenue has not advanced any valid ground justifying a contrary view. In the circumstances, the impugned order does not .....

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