2013 (6) TMI 506 - AT - Central Excise

Cenvat Credit - duty payment documents - photocopies or extra copies - stay - Held that - in respect of these appeals, this is the second round of litigation and in first round of litigation when the matter had come up to the Tribunal, the Tribunal while remanding the matter had directed the appellant to deposit the amounts of Rs. 2,01,711/- and Rs. 67,327/- which had been deposited and are still with the department. In view of this, so far as these appeals are concerned, there is no necessity to require the pre-deposit of any further amount. As regards, the stay application No. E/S/1494/2012 in appeal No. E/1182/2012, prima facie it cannot be said that the appellant have a prima facie case as admittedly the verification regarding receipt of the goods covered by the invoices, on the basis of Cenvat credit had been taken, had not been done. - appellant directed to make pre deposit of 50%.

Summary

Issues:
- Admissibility of Cenvat credit on the basis of photocopies or extra copies of invoices when original invoices are not available.
- Disallowance of Cenvat credit by the department leading to confirmation of demands and imposition of penalties.
- Appeal to Commissioner (Appeals) resulting in upholding of Cenvat credit demands but setting aside of penalties.
- Stay applications filed against the orders of the Commissioner (Appeals).

Analysis:
The primary issue in the judgment revolves around the admissibility of Cenvat credit concerning duty paid capital goods based on photocopies or extra copies of invoices in the absence of original invoices. The department disallowed the Cenvat credit amount in three separate orders, leading to demands totaling Rs. 3,26,596/-, Rs. 1,03,886/-, and Rs. 3,07,037/-, along with the imposition of penalties. The Commissioner (Appeals) upheld the Cenvat credit demands but set aside the penalties, prompting the filing of three appeals and stay applications against these orders.

During the hearing, the appellant argued that Cenvat credit should be allowed for capital goods received in the factory even if only photocopies or extra copies of invoices are available, citing a judgment of the Hon'ble Chhattisgarh High Court. The appellant highlighted the receipt of the goods in the factory and previous litigation rounds. The appellant requested waiver of the balance amount of Cenvat credit demand, interest, and penalties based on the amount already deposited in compliance with Tribunal directions.

On the other hand, the Senior Departmental Representative opposed the stay applications, emphasizing that Cenvat credit cannot be granted based on photocopies or extra copies without prior permission from the Jurisdictional Assistant Commissioner for necessary verification. The representative argued that required verification by Central Excise Officers had not been conducted in this case, making it unsuitable for waiver.

After considering both sides' submissions and reviewing the records, the judge made specific determinations regarding the stay applications for each appeal. For the appeals E/1180/2012 and E/1181/2012, where the appellant had already deposited amounts as per Tribunal directions, no further pre-deposit was required. However, for appeal E/1182/2012, the judge directed the appellant to deposit 50% of the Cenvat credit demand within a specified period. Compliance reporting was set for a particular date, and upon deposit within the stipulated time, the requirement for pre-deposit of the remaining amount, interest, and penalties would be waived, with recovery stayed until appeal disposal.