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TMI Blog2024 (8) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... repancies have come to notice during the audit else the facts might not have come to knowledge of the department. Thus the appellant is alleged to have suppressed the facts from the department with intent to evade payment of Central Excise duty. Therefore, wrongly taken Cenvat credit of Rs.12,62,017- on input services was proposed to be recovered with proportionate interest and appropriate penalties vide Show Cause Notice No. 2152 dated 04.11.2019. The proposal has been confirmed vide Order-in-Original No. 01/2021-22 date 30.06.2021. The appeal against the said order is dismissed vide Order-in-Appeal No. 15/2023 dated 14.03.2023. Being aggrieved the appellant is before this Tribunal. 2. I have heard Shri Dhruv Tiwari and Ms. Aarushi Prabhakar, learned Advocates for the appellant and Shri Rohit Issar, learned Authorized Representative for the department. 3. Learned counsel for the appellant foremost has raised the jurisdiction issue as the authority issuing show cause notice is different from adjudicating authority. He has submitted that the appellant has correctly availed Cenvat credit of Rs.12,62,017/- in terms of Rule 9(1) of the Credit Rules and Rule 9(2) ibid. In this regard, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs.1,34,261/- in respect of clearance made to Baynee Traders and Ashoka Services, it is mentioned that the appellant has already paid central excise duty. Thus, in terms of the above submissions and supporting evidence of payment of central excise duty, the demand of central excise duty of Rs.1,34,261 is submitted as unsustainable and is prayed to be set aside. 3.3 Finally submitting that substantive benefit of Cenvat credit cannot be denied merely on technical/procedural lapses and that the extended period of limitation is not invokable, penalty is not imposable and interest is not recoverable. This order is accordingly prayed to be set aside and appeal is prayed to be allowed. 4. While rebutting on the issue of jurisdiction on the ground of show cause notice being issued by Assistant Commissioner, CGST Audit, Jaipur but adjudicated by Deputy Commissioner, CGST Division, Jaipur but learned Departmental Representative has referred to Circular No. 985/09/2014-CX dated 22.09.2014 Para 5.3 thereof. While submitting on merits, learned Departmental Representative has mentioned that on verification of sample invoices submitted by the appellant it was found that invoices were not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 22.09.2014, it is observed that the same is with respect to the guidelines regarding structure, administrative set up and functions of the audit commissionerates. Para 5.3 thereof reads as follows: "5.3 Audit Commissionerate shall issue the show cause notice, wherever necessary, after the audit objections are confirmed in the MCMs. The show cause notice shall be answerable to and adjudicated by the Executive Commissioner or the subordinate officers of the Executive Commissionerate as per the adjudication limits prescribed the Board. Audit function will end with the issuance of show cause notice and further action including adjudication and follow-up shall be the responsibility of Executive Commissioner." 5.2 In view of this, it is clear that the aforesaid allegation challenging the jurisdiction is not sustainable. The adjudication authority despite being different from one which issued the said show cause notice is held to have the competent jurisdiction. 5.3 Now coming to the merits of the present case, it is observed that Commissioner (Appeals) has confirmed the demand based on following findings: (i) I find that the audit during the audit observed that the documents on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (ll) inputs or capital goods as such; (ii) an importer; (iii) an importer from his depot or from the premises of the consignment agent of the said importer if the said depot or the premises, as the case may be, is registered in terms of the provisions of Central Excise Rules, 2002; (iv) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or ........... (2) No CENVAT credit under sub-rule (1) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf. Thereafter, an exception is carved out, wherein if certain details, but not all, are provided in the invoice, credit shall be allowed, if the Assistant / Deputy Commissioner is satisfied that that the goods/services are received and accounted for in the books of accounts. 5.8 In the present case, apparently the invoices were issued in the name of other plants of the appellant instead of being in favour of appellant. But it is also an admitted fact that the invoices were found accounted in the books of appellant, NEI Jaipur. Revenue has produced no evidence to prove that the units whose name were mentioned on the invoices had accounted those invoices in their books of accounts. Revenue has also failed to produce any evidence to prove that the input services were received by other units of NEI that the Jaipur unit. The burden was of the Revenue/department. I draw my support from the decision in the Case of Radha Madhar Corporation Ltd. Vs. Commissioner of Centra Excise Daman reported in 2012 (284) ELT 369. 5.9 I further observe that appellant had placed on record the Chartered Accountant (CA) certificate but the authorities below have not considered the same. It is settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquiesced to the request of the appellant and proceeded to issue corrected invoices. Order-in-Original has held that the appellant submitted invoice no. JCR/2017-18/001 dated 28.04.2017 and JCR/2017-18/2002 dated 24.05.2017 issued by Jagdish Chander Raja wherein Service Tax of Rs.25,500/- was charged in each invoice. That on perusal of invoices in Annexure-A to SCN, the said invoices are not mentioned by the audit and the said invoices do not pertain to the audit objection. But I observe that in the show cause notice neither the invoice no. nor the invoice date is mentioned. Annexure-A to show cause notice simply notes the posting date of invoice and the amount of service tax, of which Cenvat credit is availed and the aforementioned invoice is recorded. There is no evidence to the contrary, otherwise. It is held that the invoices submitted by the appellant pertain to the subject matter at hand and the demand of Cenvat credit is not sustainable. Rejection of these documents in the impugned proceedings is without appreciating the correct facts and thus, liable to be discarded. 5.13 Appellant has also placed on record the CA certificate issued by Ashok Kanodia & Co., wherein it is c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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