TMI Blog2018 (11) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... irupati Proteins Pvt. Ltd. who only was mentioned in the invoice as buyer. Even if, the Department’s case for said invoice to have no inadvertent mistake in the invoice is concerned, the only difference it makes is that instead of appellant, M/s. Tirupati Proteins Pvt. Ltd. would have been entitled for availing the said credit i.e. there is no case to deny the availment or utilisation of Cenvat Credit. Appeal allowed - decided in favor of appellant. - Excise Appeal No. E/52513/2018-EX [SM] - FINAL ORDER NO. 53260/2018 - Dated:- 26-10-2018 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. R. Santhanam, Advocates Present for the Respondent: Ms. Tamanna Alam, D.R. ORDER PER: RACHNA GUPTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nput to the appellant i.e. M/s.Goramal Hari Ram Ltd. But inadvertently, it has been made in the name of Tirupati Proteins Pvt. Ltd., Jaipur as buyer and the name of the appellant was inadvertently been omitted to be mentioned in the said invoice. It is submitted that the mistake was merely a clerical in nature. That too, is the one which occurred at the end of M/s. N.K Proteins Pvt. Ltd. The appellant initiated communication to get the same rectified. The various e-mail/letters have been impressed upon to submit that the mistake was brought to the notice of M/s. N.K. Proteins on 23rd October, 2015 i.e. prior to the issuance of the impugned show cause notice. It is also impressed upon that even the Department was informed about the same vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils as that of the Tanker No. and the net weight for both the invoices. It is alleged that the correction as impressed upon by the appellant is actually an afterthought and was made to avail a wrong cenvat credit only after the factum of appellant not being mentioned as consignee came to the notice of Department during the order justifying the order under challenge. Appeal is prayed to be dismissed. 6. After hearing both the parties and perusing the record including the order under challenge, I am of the opinion that the cenvat credit is alleged to have been wrongly availed and utilized relying upon Rule 9 of CCR, 2004. Perusal of this Rule makes it clear that to avail a cenvat credit, the manufacturer or the provider of the output/input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the name of the appellant as the consignee. The said competent officer after due verification has acknowledged the said inadvertent mistake and has conveyed it to the Assistant Commissioner, Central Excise, Range Neemrana vide letter dated 09.11.2015 specifically mentioning that the invoice in which the address of consignee is mentioned as Goramal Hariram Ltd. 6A, RIICO Indl. Area, Neemrana, Dist. Alwar i.e. the appellant herein, is genuine. The said letter was brought to the notice of the Department much prior the order of original adjudicating authority. I therefore opine that the said authority committed an error while ignoring the verification done by the Revenue Department itself. Further perusal of this order shows that while confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be issued only after the enquiry and it is only if Assistant Commissioner is satisfied that the credit availed is incorrect that the adjudication should be started. 10. In the present case, the enquiry though was conducted holding the requisite document as genuinely recording appellant to be the consignee that is the appropriate person to be entitled to avail and utilize credit, the adjudicating authority still has proceeded to deny the said entitlement ignoring the relevant document required to apply Rule 9. In the given circumstances, I am of the opinion that the order under challenge is passed with a biased mind ignoring not only the legal propositions but also the factual aspects as that of enquiry conducted by the Department itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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