TMI Blog2023 (9) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... sence that would put the invoices in the category of inadmissible document. On the issue of taking credit without supporting invoices Appellant might have procured/discovered those invoices subsequently and produced the same at the time of hearing of these appeals before this Tribunal but the same cannot be taken as additional piece of evidence in the absence of following procedure contained in Rule 23 of the CESTAT (Procedure) Rules, 1982, when manifestedly the Commissioner had made categorical observation with reference to Assessee-Appellant s own reply letter that they had no other document available at their end for production. Appeal dismissed. - DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) AND MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri Prabhakar Sharma, Superintendent, Authorised Representative for the Appellant Shri Bharat Raichandani, Advocate for the Respondent ORDER Legality of the order passed by the Commissioner in partly allowing CENVAT Credits as admissible and partly denying a portion of credits as inadmissible is assailed in these two appeals by the Assessee as well as the Department to the extent of the order affecting them. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rules, 2004 read with Section 78 of the Finance act, 1994; (iv) Amount should not be recovered from them under the provisions of Rule 7C of the Service Tax Rules, 1994; (v) Penalty should not be imposed on them under the provisions of Section 77 of the Finance Act 1994; Additionally (vi) Shri Nemichand Jayavantraj Mehta, Managing Director of the noticee company and Shri Anish S. Maheshwari, General Manager, (Finance) was required to show cause as to why penalty should not be imposed upon him under the provisions of Section 78A of Finance Act, 1994, as amended. Assessee replied back. The matter was adjudicated upon by the Commissioner of CGST Central Excise, Raigad who passed his order on dated 15.03.2018, the operating portion of which reads: (i) I disallow Cenvat Credit of Rs. 1,04,20,879/- (Rupees One Crore Four Lakhs Twenty Thousand Eight Hundred Seventy Nine only) (Rs.84,51,419/- + Rs.19,69,460/-) and determine the same as payable by M/s. Navkar Corporation Ltd. under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73(2) of the Finance Act, 1994; (ii) I drop the demand of Rs.99,51,627/- (Rupees Ninety Nine Lakhs Fifty One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enial of CENVAT Credit to the tune of Rs.19,69,460/- on the ground that the invoices were missing was incorrect for the reason that invoices were all along in possession of the Assessee-Appellant which they have annexed to the written submission during the hearing of this appeal. Further, he pointed out that show-cause notice was issued on 10.01.2014, which was beyond the period of limitation of 18 months period prescribed during the relevant time and placing reliance on the judgments of Uniworth Textiles Ltd. V/s. CCE Raipur reported in 2013 (288) ELT 161 (SC), Hi Tech Power Steel Ltd. V/s. CCE Raipur reported in 2014 (34) STR 276 (Tri. -Del), Apex Electricals Pvt. Ltd. V/s. Union of India reported in 1992 (61) ELT 413 (Guj HC), M/s UPS Jetair Express Pvt. Ltd. vide Final Order No. A/87664/2018 dated 18.10.2018, he further submitted that the grounds available under Section 73 for invocation of extended period like wilful suppression with intent to avail inadmissible credits could not be conclusively established by the Revenue, for which the order passed by the Commissioner to the extent of inadmissibility of credits and penalties, interest etc. are liable to be set aside. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that no irregularity can be noticeable in the order passed by the Commissioner in refusing CENVAT Credit of Rs.84,51,419/- taken through improper/incomplete documents and CENVAT Credit of Rs.32,14,579/- on failure of the Appellant to produce duty paying documents for the reason that Rule 9 of CENVAT Credit Rules, 2004 has elaborately made provision concerning availability as well as examination of documents and more importantly it has placed the burden of proof regarding admissibility of CENVAT Credit upon the provider of output service, for which interference by the Tribunal in the order concerning denial of CENVAT Credits to the Appellant on improper documents is uncalled for. In support of the Departmental appeal, he contended that the position of law in respect of admissibility of CENVAT Credit on construction services has undergone change in the recent past otherwise during the relevant period the Board Circular was having prevalence and was being respected and that the judgments which are cited by the learned Counsel for the Assessee-Appellant herein were not placed before the Commissioner. He further submitted that there is clear noting also by the Commissioner in his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for allowing Cenvat Credit. Rule 9(1) of the Cenvat Credit Rules, 2004 prescribes the documents on the basis of which the CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be. Rule 9(2) reads as under: (2) No CENVAT credit under sub-rule(I) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994, as the case may be, are contained in the said document: Provided that if the said document does not contain all the particulars but contains the details of duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Service tax Registration number of the person issuing the invoice , as the case may be, name and address of the factory or warehouse or premises of first or second stage dealers or provider of taxable service, and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods or services covered by the said document have been received and accounted for in the books of the account of the receiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant place where as the same is found reflected in bill dated 12.06.2009. This aspect is not referred in the show-cause notice though the same show-cause notice was issued on the basis of investigation but the genuineness of the invoices are doubtful since placing the Service Tax registration number is conspicuous by its absence that would put the invoices in the category of inadmissible document. We are, therefore, not inclined to interfere in the findings of the Commissioner on this issue. 8. On the issue of taking credit without supporting invoices Appellant might have procured/discovered those invoices subsequently and produced the same at the time of hearing of these appeals before this Tribunal but the same cannot be taken as additional piece of evidence in the absence of following procedure contained in Rule 23 of the CESTAT (Procedure) Rules, 1982, when manifestedly the Commissioner had made categorical observation with reference to Assessee-Appellant s own reply letter that they had no other document available at their end for production. Hence the order. THE ORDER 8. Both the appeals are dismissed and the order passed by the Commissioner of CGST Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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