TMI Blog2023 (7) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... eally manufactured the goods before purchasing the same. The very fact that the supplier was in existence for 15 years, had availed Cenvat credit of more than Rs. 18 crores would show that the supplier did have some standing in the market. Since the Cenvat credit availed by the appellant is reflecting the duty paid on the goods by the supplier for which no evidence is available to show to the contrary and in view of the above circumstances, it will not be appropriate to demand duty and deny the Cenvat credit from the appellant. As the appellant has taken cenvat credit on the procurement of capital goods on the strength of duty paying documents, therefore, the cenvat credit cannot be denied - Appeal allowed. - Service Tax Appeal No. 4 of 2010 - FINAL ORDER NO. 76075/2023 - Dated:- 14-7-2023 - HON BLE MR. ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri N. K. Chowdhury , Advocate of the Appellant Shri J. Chattopadhyay , Authorized Representative for the Respondent ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order wherein the cenvat credit has been denied to the appellant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n capital goods installed in their factory. Therefore, the impugned order is to be set aside and also the demand is barred by limitation. To support, he relied on the decisions of this Tribunal in the case of Sunvik Steels Limited : 2012 (276) ELT 518 (Tri.-Bang.) and Dhakad Metal Corporation : 2015 (330) ELT 561 (Tri.- Ahmd). 4. On the other hand, the ld.A.R. for the Revenue drew our attention to the fact that the supplier/manufacturer of the capital goods, on which the appellant has taken cenvat credit, was not having manufacturing facility in their premises. Therefore, the said capital goods have not been received by the appellant. In that circumstances, the cenvat credit has rightly denied. 5. Heard the parties and considered the submissions made from both the sides. 6. On careful consideration of the submissions made from both the sides, we find that in this case the short issue involved whether the appellant is entitled to take the cenvat credit on the strength of the duty shown in the invoices by the supplier of the capital goods or not ? 7. It is the fact on record that the appellant has availed cenvat credit on capital goods procured from the supplier/manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt to expect an assessee located in Karnataka to go and verify whether the manufacturer had the facility and whether he had really manufactured the goods before purchasing the same. The very fact that the supplier was in existence for 15 years, had availed Cenvat credit of more than Rs. 18 crores would show that the supplier did have some standing in the market. Since the Cenvat credit availed by the appellant is reflecting the duty paid on the goods by the supplier for which no evidence is available to show to the contrary and in view of the above circumstances, it will not be appropriate to demand duty and deny the Cenvat credit from the appellant. Moreover I find myself in agreement with the view canvassed by the learned advocate that once it is held that there was no suppression or mis-declaration on the part of the appellants and no penalty is imposed on them, duty demand invoking extended period also cannot be sustained if challenged. Thus on merit as well as on limitation, the appellants succeed. Accordingly, appeal filed is allowed with consequential relief to the appellant. 8. Further, in the case of Dhakad Metal Corporation (supra), again this Tribunal, has observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice was issued on 20-2-2009. As the extended period is not invokable, therefore, the demand is also time barred in addition to credit being admissible on merits. Accordingly appeal filed by M/s. Dhakad Metal Corporation is required to be allowed. 9. Further, in the case of R.S.Industries : 2003 (153) ELT 114 (Tri.- Del.), this Tribunal examined this issue and observed as under : 5. We have considered the submissions of both the sides. The Revenue has not challenged the findings contained in the impugned Order to the effect that the allegation of non-receipt of goods by the Appellants has not been established beyond doubt in view of the fact that Prerna Metal Inds. had bought material from Delhi Aluminium Corporation which was substantial in nature. Once the Revenue is not disputing the receipt of goods under the cover of invoices by the appellants which contained duty paying particulars the Modvat credit cannot be denied to the appellants. As far as the appellants are concerned they have purchased the goods which are dutiable on the strength of the invoices carrying duty payment particulars. Moreover the Revenue has confirmed the demand of duty against Prerna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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