TMI Blog2017 (2) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... job work basis and no sale purchase transaction is involved - appellant is entitle for the Cenvat credit on the supplementary invoice - appeal allowed - decided in favor of appellant. - E/395/07 - A/85552/17/SMB - Dated:- 27-1-2017 - Mr Ramesh Nair, Member(Judicial) Shri. M.P. Baxi, Advocate for the Appellants Shri. Sanjay Hasija, Superintendent (A.R.) for the Respondent ORDER The appellant are engaged in the manufacture of excisable goods viz. Bournvita, Delite, Cocoa Power, drinking chocolate falling under chapter 18 and 19 of the Central Excise Tariff Act, 1985 and were also availing Cenvat Credit. The appellant had taken the Cenvat credit of ₹ 10,16,153/- on the supplementary invoice NO. 442 dated 3-8-2004 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore there was no suppression of facts on the part of M/s. Lotus Chocolate Co. He submits that it was not a case of clandestine removal. Duty demand is only due to difference in costing of the product, since the valuation of the goods is at cost construction basis when this discrepancy was pointed out, M/s. Lotus accepting the duty liability paid duty alongwith interest before issuance of show cause notice and informed the department to close the matter. He submits that there is no categorical findings that M/s. Lotus chocolate Co has evaded the duty by reason of suppression of facts. He also submits that ingredient for invoking proviso to Section 11A(1) as well as imposition of penalty under Section 11AC are pari materia. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lotus chocolate Co in favour of the appellant is not eligible for the Cenvat credit in terms of Rule 7(i)(b) of the Cenvat Credit Rules. He placed reliance on the following judgments: (a) Akik Dyechem Pvt Ltd Vs. Commissioner of C. Ex. Ahemedabad [2013(290) ELT 273 (Tri. Mumbai)] (b) S.M.V. Beverages Pvt Ltd Vs. Commissioner of C. Ex. Nagpur[2007(231) ELT 269 (Tri.Mum)] (c) Commr. Of C. Ex. Cus., Daman Vs. Magalam Drugs Organics Ltd [2007(208) ELT 95 (Tri. Mumbai)] (d) Shiv Enterprises Vs. Commissioner of Central Excise Customs[2015(322) ELT 703 (Guj)] 4. I have carefully considered the submissions made by both sides and perused the record. 5. I find that entire basis for denial of Cenvat credit is short paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not arise. It is also observed that entire transaction from M/s. Lotus Chocolate Co to the appellant and then with the Cadbury are on job work basis and no sale purchase transaction is involved. In this fact the judgment of United Phosphorus Ltd (supra) support the case of the appellant. Accordingly Cenvat credit on supplementary invoice even for extended period is admissible to the recipient factory of the appellant. Taking into account the ratio of the said decision also the appellant is entitle for the Cenvat Credit on the supplementary invoice issued by M/s. Lotus Chocolate Co. As per the above discussion, I am of the considered view that appellant is entitle for the Cenvat credit on the supplementary invoice therefore impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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