M/s Deepak Galvanising And Engineering Industries Pvt. Ltd., Versus Commissioner of Central Tax, Secunderabad – GST
Central Excise
2018 (5) TMI 601 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 19-2-2018
E/1544 & 1545/2011 – A/30469-30470/2018
Central Excise
MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL)
Shri M. V Sridhar, Advocate for the Appellant.
Shri Bhagat Deepak, (AR) for the Respondent.
[Order per: M.V. Ravindran]
These appeals are filed against the Order-in-Original No. 02/2011-CE-HYD-III Adjn. Commr dated 11.03.2011.
2. The relevant facts that arise for consideration, after filtering out of unnecessary details are the main appellant herein had availed CENVAT credit of Central Excise duty paid on various goods purchased from first stage registered dealers. During the period 2007 to 2008 on verification of the records by the DGEI officers, it was noticed that the description mentioned in the original duty pay
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nly if they conform to the specifications mentioned in the related purchase orders. It is the submission that if the materials do not conform to the specifications they are returned back. It is the submission that for the goods received from registered dealer, the documents are excise invoice of a registered dealer, delivery challan of registered dealer and commercial invoice (tax invoice). It is his submission that they ensure that the documents on which credit is availed contains all the information as prescribed in sub rule 2 of rule 9 of the CENVAT Credit Rules read with Rule 11 of Central Excise Rules. He would then takes through a specific example in respect of supplies made by one of the dealers M/s HST Steels Pvt. Ltd. He would submit that the documents indicate clearly the description of the goods and correlation is made with the order number/ delivery challan and first stage dealer invoices. He would submit that as the recipient of duty paid goods, they are not required to go
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objections were raised by the audit section and draws our attention to the various audits conducted at the premises; the said submissions were made before the Adjudicating Authority but it was not considered in it is correct perspective.
4. Learned Departmental Representative reiterates the findings of the lower authorities and supports the order.
5. On careful consideration of the submissions made, we find that the facts are not much in dispute. It is the case of the Revenue that the main appellant had availed CENVAT credit wrongly as they are able to explain as to why and how the description of the goods actually received do not tally with the cenvatable invoice issued by manufacturer of the goods and the statements given by the dealers leads to irresistable conclusion is that the goods received are not supported by cenvatable invoices issued by manufacturer of said goods.
6. As we find on perusal of the documents produced by the appellant's counsel as to the receipt of the
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he impugned order needs to be set aside.
7. As regards the limitation, we find that the Adjudicating Authority in the impugned order in paragraph No. 35 has recorded that even if the records are audited, audit party will confine its findings to the cenvatable invoice and would not go into the documents like inward register and delivery challan and the audit party presumed that CENVAT invoice would tally with the physical description of the goods. Suffice to say that these findings are not in consonance with the law as laid down by the Hon'ble High Court of Karnataka in the case of Commissioner of Central Excise, Bangalore-I Vs. MTR Foods Ltd., [2012 (282) ELT 196] and followed by Trans Engineers India Pvt. Ltd., [2015 (40) STR 490 (Tri. – Mum)], we hold the question of limitation has to be held in favour of the main appellant herein. In view of the foregoing, we find appeal is acceptable on merits as well as on limitation, accordingly, we hold that the demands raised on the main appel
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