2016 (11) TMI 1472 - AT - Central Excise

CENVAT credit - duty paying invoices - credit disallowed on the ground that the appellant availed credit on the basis of photo copies of the two invoices as the original and duplicate copy of the invoices were lost - Held that - on 08.08.2013, the appellants have debited an amount of ₹ 17,768/- and filed a copy of RG-23C for the month of August, 2013, which is not contested by the appellant - there are no element of suppression of facts, fraud, collusion, mis-statement or contravention of any of the provisions of Act or the Rules made therein with intent to evade payment of duty by the appellants - penalty set aside - demand of duty upheld - appeal allowed in part.

Summary

Issues:
- Appeal against impugned Orders-in-Appeal
- Disallowance of Cenvat credit on capital goods
- Interpretation of Rule 3 of the Cenvat Credit Rules, 2004
- Production of original vs. photocopies of invoices
- Allegations of suppression of facts, fraud, collusion, mis-statement

Analysis:
The appellants filed two appeals against Orders-in-Appeal issued by the Commissioner of Central Excise, Kolkata, concerning the disallowance of Cenvat credit on certain capital goods. The appellant, a manufacturer of carbon black, availed 50% of the Cenvat credit in April 2005, based on photocopies of invoices as the original and duplicate copies were lost. The Consultant for the appellants argued that the conditions for availing Cenvat credit under Rule 3 of the Cenvat Credit Rules, 2004 were met, emphasizing that the goods were capital goods received at the factory with the Cenvat amount paid.

During the hearing, both sides presented their arguments, with the Revenue supporting the findings of the Commissioner (Appeals). The issue revolved around the appellant's inability to produce the original copies of two invoices during a departmental audit conducted two years after availing the credit. The appellant later provided photocopies of the triplicate copies of the invoices certified by the manufacturer, along with other supporting documents. The Tribunal noted that there was no evidence of suppression, fraud, collusion, or intent to evade duty by the appellants.

Consequently, the Tribunal set aside the penalty imposed under Section 11AC but upheld the demand for duty. The appeals were partly allowed, with the Tribunal emphasizing the lack of intent to evade payment of duty and accepting the appellant's submission of certified photocopies as sufficient evidence of the receipt of capital goods. The decision was pronounced in open court, providing relief to the appellants while affirming the duty demand.