2012 (9) TMI 741 - AT - Central Excise

Demand and penalty - cenvat credit - whether credit cannot be taken on the basis of photocopy/true copy of the bill of entry Held that - Goods were received in factory in 2005 and the original bill of entry admittedly was available till 14-4-06 and thereafter only it got misplaced according to the respondents - bill of entry was available till the credit was taken i.e. for more than a year. How it disappeared thereafter is something for which no explanation whatsoever has been putforth by the respondents - credit cannot be allowed on the basis of photocopy of bill of entry In favor of Revenue

Summary

Issues:
1. Availment of cenvat credit based on photocopy of bill of entry.
2. Interpretation of Rule 9 of Cenvat Credit Rules, 2004.
3. Validity of availing credit on the basis of photocopy of bill of entry.
4. Comparison with past rules and judicial precedents.
5. Requirement of original documents for availing credit.

Analysis:
1. The respondent availed cenvat credit based on a photocopy of the bill of entry for additional customs duty paid on imported inputs. The original adjudicating authority initiated proceedings due to the use of a photocopy instead of the original bill of entry, resulting in the confirmation of demand and imposition of penalties. The respondent's appeal was allowed, leading to the current appeal by the Revenue.

2. The learned DR argued that as per Rule 9 of Cenvat Credit Rules, 2004, credit can only be taken on an original bill of entry, not a photocopy. Citing judicial decisions, the DR emphasized that photocopies cannot substitute original documents for availing credit. The respondent, although absent, submitted that the goods were duty paid, received in the factory, used as inputs, and cleared after payment of duty, maintaining proper records. They relied on specific decisions to support their case.

3. The Tribunal analyzed Rule 9, which lists acceptable documents for availing cenvat credit, including a bill of entry without specifying original, duplicate, or triplicate. The Tribunal rejected the respondent's argument that the absence of specific requirements for original documents allowed for the use of photocopies. Referring to judicial precedents, the Tribunal emphasized the importance of original documents for availing credit and dismissed the argument that photocopies could suffice.

4. Considering past rules and judicial decisions, the Tribunal highlighted that even under the erstwhile Modvat Credit Rules, specific requirements existed for original documents. The Tribunal cited cases where credit was denied based on the absence of original documents, reinforcing the principle that photocopies cannot replace originals for availing credit. The Tribunal found the respondent's logic regarding the misplacement of the original bill of entry unconvincing.

5. The Tribunal concluded that credit cannot be allowed based on a photocopy of the bill of entry, especially when original documents were available initially but later misplaced. Referring to the Supreme Court's stance on the importance of original documents for availing credit, the Tribunal held that the appeal by the Revenue was justified. The decision highlighted the necessity of adhering to the requirement of original documents for availing cenvat credit, ultimately ruling in favor of the Revenue.