TMI Blog2018 (3) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 (SM) - A/58794/2017 - Dated:- 30-11-2017 - Shri Anil Choudhary, Member (Judicial) Shri R. Krishnan, Advocate for the Appellant. Shri Udhap Sengraj, Authorized Representative (DR) for the Respondent. ORDER Per. Anil Choudhary This is the second round of litigation. In the earlier round, this Tribunal in appeal by the appellant herein, in CEA No.1346/2007 SM (BR) with a final order No.1440/2009 SM (BR) dated 10th November 2009 passed the following order remanding the matter to the Original Authority for verification and allowing the credit under dispute. Per M. Veeraiyan: This is an appeal against the order of the Commissioner (Appeals) No.08/CE/DLH/2007 dated 8.2.2007. 2. Heard b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty and the AED (GSI). However, during the period 2000-01, 2002-03, they had availed credit only in respect of basic excise duty paid on the sugar. However, the intention of the Government was made clear by the Circular dated 6.3.2003 issued by Board and accordingly the credit of AED (GSI) was availed by them subsequently. Though there was dispute on AED credit on sugar procured from manufacturer, the same was allowed by the same order of the original authority. The present dispute is only in respect of supplies received from the dealers. The invoices issued by the dealers were for an amount naturally including the entire excise duty amount and other expenses and profit of margin of the dealers. However, during the relevant period, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 to Rule 3 of Cenvat Credit Rules, AED (GSI) is eligible for the grant of credit and that appellants have received the goods from the dealers under their invoices which gave reference to the manufacturer s invoices, the credit should not be denied with reference to the supplementary invoices. He also submits that Rule 7 does not exclude the other situation for issue of supplementary invoices. He also relies on the decisions of the Tribunal permitting credit based on TR-6 challans though the said document is not referred in Rule 7 of Cenvat credit Rules. He, further submits that the question of imposition of penalty does not arise as the Board issued clarification in 2003 permitting retrospective availment of Cenvat credit on AED (GSI) fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nments in question However, the fact of payment and the quantum of AED (GSI) as mentioned in the supplementary invoices has to be verified with reference to the documents referred to by the appellants. In the given facts and circumstances of the case, which involved a conscious amendment to give retrospective benefit of credit of AED (GSI), the question of imposition of penalty does not arise. 7. In view of the above, the appeal is disposed of as follows: a) Penalty is set aside. b) The matter is remanded to the original authority to allow the credit of AED (GSI) with reference to the supplementary invoices issued by the registered dealers subject to verification of particulars of manufacturer s invoices referred in the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest and also equal amount of penalty. 3. Being aggrieved, appellant preferred appeal before learned Commissioner (Appeals) who was placed to allow the appeal in part observing that this Tribunal directed the Original Authority to allow the credit, in question, with reference to the supplementary invoices issued by the registered dealer subject to verification of particulars of manufacturer s invoices referred in the original invoices of registered dealers. Now, when manufacturers invoices have not been produced and when they are not available on record the verification of particulars of manufacturer s invoices is not possible. Consequently, as per direction of this Tribunal, the said verification is not possible and accordingly the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve relied on the impugned order. He further states that instead of opportunity provided by this Tribunal in remand, the appellant have failed to provide necessary verification, as such, appeals are dismissed. 6. Having considered rival contentions, I find that the appellant have done their best whatever they could do under the scheme of Act under rule. I further find that the authorities below fail to exercise their duty to make adequate enquiries by referring or calling for cross-verification report of the concerned jurisdictional officers of the manufacturers. More so, in face of the fact that the appellant have categorically stated that the said evidence is not available with them or with the first stage dealer Delhi Sugar Trading C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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