TMI Blog2019 (10) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... at he may enquire into documents, etc. and on being satisfied that the goods or services covered by the said documents have been received and accounted for in the books of account of the receiver, he may allow the cenvat credit. Power of Commissioner (Appeals) to remand the case - HELD THAT:- The Commissioner (Appeals) has got no powers to order for reinvestigation. Further, the Commissioner (Appeals), being a creature of statute, has no powers to extend the limitation prescribed in the Act for issue of show cause notice. Further, it is found that an order allowing to take cenvat credit under the proviso to Rule 9(2) of CCR is not an adjudication order and accordingly, the monetary limit prescribed for an adjudication order is not applicable. Admittedly, there is no cause to issue notice. Further, the Commissioner (Appeals) has got no powers to remand in the facts and circumstances. Further, duty paid nature of the goods/inputs in question has not been doubted. Evidently, there is only a technical objection raised by the Preventive Team. Revenue Neutrality - HELD THAT:- Rule 16 (1) of Central Excise Rules provides that where any goods on which duty has been paid at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails of suppliers/ manufacturers i.e. name and address of suppliers/manufacturers‟ invoice no. and date, item name, quantity and rate of duty, amount of duty. As the invoices of these dealers appeared improper for availing cenvat credit, it appeared to the Department that the cenvat credit has been taken by Rajasthan Antibiotic on such invoices in contravention of the provisions of Rule 11(2) of CER, 2002 read with Rule 9(2) of CCR, 2004. Such credits were taken during the period 2011-2012 to 2013-2014. 3. The statement of Vice President (Finance), Shri Sanjay Mittal was recorded on 26.02.2014, wherein, he admitted the mistake of availing cenvat credit on improper invoices, which do not contain the details such as suppliers‟ /manufacturers‟ name, address, CST No. ECC No. TIN No., Invoice No. and date, item name, quantity and rate of duty and further voluntarily deposited ₹ 20,60,000/- as part of cenvat credit wrongly availed. 4. Rajasthan Antibiotic vide their letter dated 12.06.2014 submitted an application under Rule 9(2) of CCR, 2014, accepting therein that the invoices issued by the aforementioned two dealers do not contain some of the particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold inter-units. 16. Therefore, under proviso to the Rule 9(2) of the Cenvat Credit Rules, 2004, application filed by the assessee appears to be in order and they are entitled to avail cenvat credit on such documents as the assessee has fulfilled all the conditions stipulated in the said rules. 7. In the operative portion of the order, the Dy. Commissioner allowed the cenvat credit of ₹ 4,22,49,650/- in respect of invoices issued by M/s. Poonam Chemicals and ₹ 4,02,65,242/- in respect of invoices issued by M/s.Adit Chem. 8. Being aggrieved, Revenue preferred appeal before the Commissioner (Appeals), inter alia, on the ground that the Vice President (Finance), Rajasthan Antibiotics admitted their mistake of availing improper cenvat credit, which was recorded on 26.02.2014. The total cenvat credit availed on the basis of improper duty paying documents and further, there is suppression of material facts with intent to wrongly utilise the cenvat credit. There is clear cut violation of Rule 11(2) of CER read with Rule 9(2) of CCR. As admittedly, the documents on the basis of which credit was taken do not contain several material particulars. Subsequently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onetary limit under Section 33 read with Section 11 A of the Act, and the Circular thereunder prescribed monetary limit for the Asstt./Dy. Commissioner to adjudicate the cases involving amount upto ₹ 5 lakhs. The instant case involves disputed credit of ₹ 8.25 crores, which was well above the prescribed limit for the Dy. Commissioner of Central Excise. 10. Rajasthan Antibiotics also appeared before the Commissioner (Appeals) and contested the appeal of the Revenue by filing the written submission, as well as cross objection. 11. The ld. Commissioner (Appeals) observed that the Order-in-Original is silent as to what documents were examined to arrive at the findings and conclusions. Thus, it is a non-speaking order. It was further observed that as per Note of the Inspector dated 10.11.2014, which was approved by the Dy. Commissioner, contains certain aspects to be examined. The file does not show whether the mentioned aspects were examined and the result of such examination. The Commissioner (Appeals) observed that the issue needed further examination like, whether the parties involved are related, as regards the shelf life of the goods involved, transaction declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) to give waiver of limitation. Para 18 OIO is without jurisdiction as Assistant Commissioner can adjudicate the case having monetary value upto ₹ 5 lakhs. Para 20 The Assistant Commissioner erred in allowing credit of inputs on the basis of improper documents. 13. Ld. Authorised Representative for Revenue urges the grounds of appeal of the Department. Further, urges that the Commissioner (Appeals) lacks the power to remand and order to re-investigate with direction to issue show cause notice, which are beyond his powers under Section 35 A(3), to re-open investigation and that too, at the belated stage when order-in-original has been passed on 31.07.2015, about 2 years back. It is further urged that the Commissioner (Appeals) has erred by ordering waiver of limitation period along with order for reinvestigation. Further, the Commissioner (Appeals) did not adjudicate upon the ground raised as to monetary limit. The Order-in-Original is evidently beyond the monetary jurisdiction of the Dy. Commissioner. It is further urged that as the cenvat credit stood objected to by the Preventive Team in Feb., 2014 and such objection was admitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the regularisation of cenvat credit under Rule 9(2) of CCR. What is required is a satisfaction of Asstt./Dy.Commssioner having jurisdiction that the goods covered under the subject invoices have been received and accounted for in the books of accounts of the assessee, and duty has been properly discharged on the goods on which CENVAT Credit has been availed although there may be some discrepancy in the documents. The language of Rule 9(2) of CCR is very clear and unambiguous. Further, instructions /circulars of the Board fixing the monetary limit for adjudication are not applicable in the present case, as admittedly no show cause notice was issued raising demand with proposal to impose penalty. 17. Further, reliance is placed on the ruling of the Hon‟ble Supreme Court in the case of Sri Jeyaram Educational Trust and Others Vs. 2010 (2) SCC 513, wherein it has been held that it is now well settled that the provisions of a statute have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words. While doing so, the words used in the provisions should be assessed and ascribed their natural, ordinary or popular meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been periodical audits of the assessee particularly in Jan. 2014, prior to visit of the Preventive Officers in Feb., 2014. In Audit Report dated 10.01.2014, IAR No.423 /2013, no objection has been raised with respect to the duty paid inputs received by the assessee. Ld. Counsel further refers to the sample copy of the invoices along with copy of the transportation documents (from appeal paper book) in support of his contention. Further, reliance is placed on the ruling of this Tribunal in the case of CST, Chennai Vs. Verizon Data Services India Pvt. Ltd. 2015 (39) STR 522 (Tribunal-Chennai), wherein it has been held that procedural requirement for allowing cenvat credit is to be construed more liberally than the condition of an exemption notification. Further, reliance is placed on the ruling of the Apex Court in the case of Formica India Division Vs. CCE 1995 (77) ELT 511 (SC), wherein it has been held that the benefit of cenvat credit was not deniable to the assessee on the technical ground of non-compliance of procedural requirement of Rule 57A of CER, 1944. Ld. Counsel further urges that filing of application under Rule 9(2) of CCR for regularisation by the assessee, ipso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt difficulty that may arise for some discrepancy in the documents on the basis of which, credit has been taken. To alleviate such difficulty and to facilitate the assessee, power has been conferred on the jurisdictional Deputy/Asstt. Commissioner that he may enquire into documents, etc. and on being satisfied that the goods or services covered by the said documents have been received and accounted for in the books of account of the receiver, he may allow the cenvat credit. 24. We further find from the findings recorded by the Dy. Commissioner, that he has made proper inquiries both oral and documentary and on being satisfied, has allowed the cenvat credit in dispute. We further hold that the Commissioner (Appeals) has got no powers to order for reinvestigation. Further, the Commissioner (Appeals), being a creature of statute, has no powers to extend the limitation prescribed in the Act for issue of show cause notice. We further find that an order allowing to take cenvat credit under the proviso to Rule 9(2) of CCR is not an adjudication order and accordingly, the monetary limit prescribed for an adjudication order is not applicable. Admittedly, there is no cause to issue notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. 27. We further place reliance on the ruling of the Hon‟ble Supreme Court in the case of Formica India Division Vs. CCE 1995 (77) ELT 511 (SC), wherein under the facts that Formica India Division was engaged in the manufacture of rigid plastic laminates and for such purpose, they procure paper, cotton fabrics and glass fabrics as input and treated them with synthetic resin. Thereafter, layers of such treated paper/cotton fabrics, glass sheets are compressed under the heat to form rigid plastic laminates. Revenue had raised objection that the appellant did not pay duty on the intermediate products viz. Treated paper and treated cotton fabrics, which were dutiable under the CETA. Since these treated papers and cotton fabrics were consumed captively for manufacture of rigid plastic laminates, no duty has been paid on the intermediate products but duty was paid on the final products. Further, taking notice that under Notification No.71/71-CE, the assessee is entitled to a set off of the duty paid on the intermediate products from the final products, it was held that the benefit of the said notification cannot be denied on the technical ground of non-compliance with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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