2013 (12) TMI 932 - AT - Central Excise

Cenvat credit availed on the basis of Xerox copies of the bills of entry - Original duty paying documents not made available by the appellants Held that - No efforts were made by the appellants to approach Jurisdictional Officer for necessary certification regarding duty paid nature of inputs - original bills and entry were never available with the appellants and that is why straightway after receipt of show cause notice they started justifying their claim on the lines of receipt and utilization of inputs in the manufacturer of finished goods - immediately on receipt of show cause notice the appellant should have come forward with the original copies of bills and entry to justify that cenvat credit was properly taken. Copy of FIR only talks about the fire in the factory and not about the loss of the concern bills of entries - Because no such discussion is coming out from the order in original that appellant has claimed the originals to have been lost in a fire - The fire, if any must have broken out only after adjudication proceedings got completed - the contention of the appellants that the original bills and entry were destroyed in the fire and were not available, is not acceptable - original documents for taking Cenvat Credit were never available with them and cenvat credit cannot be taken on the strength of Xerox copies of bills of entry under Rule 9 (1) of the Cenvat Credit Rules - the cenvat credit has been correctly denied to the appellant and penalty has been correctly imposed by Commissioner (A) Decided against Assessee.

Summary

Issues:
- Denial of Cenvat credit based on Xerox copies of bills of entry
- Admissibility of Cenvat credit without original duty paying documents

Analysis:
The appeal was filed against the order denying Cenvat credit and imposing a penalty, which was upheld in the original order. The appellant claimed Cenvat credit based on Xerox copies of bills of entry, as the original documents were not produced during the audit. The appellant argued that since the fact of payment of duties on inputs was not disputed, Cenvat credit should be allowed based on Xerox copies. However, the department contended that Cenvat credit cannot be claimed solely on the basis of Xerox copies of bills of entry. The key issue to be decided was whether Cenvat credit could be availed without the original duty paying documents. The Cenvat Credit Rules specify that credit must be taken based on the original documents. The appellant relied on various case laws to support their argument, but the Tribunal noted that those cases involved different circumstances where efforts were made to obtain certified copies or original documents were submitted late with proper endorsement. In this case, the original bills of entry were never available, and the appellant failed to approach the Jurisdictional Officer for necessary certification regarding duty paid nature of inputs. The Tribunal concluded that Cenvat credit cannot be claimed based on Xerox copies of bills of entry under Rule 9(1) of the Cenvat Credit Rules.

The Tribunal found that the appellant did not provide the original bills of entry even after receiving the show cause notice, and the claim of the original documents being destroyed in a fire was not substantiated. The Commissioner did not accept the contention that the original bills were lost in a fire, as the FIR produced only mentioned a fire in the factory without specific details about the loss of bills of entry. It was unclear from the facts presented when the fire occurred, but it was determined that the original documents were never available with the appellant. Therefore, the denial of Cenvat credit and imposition of the penalty by the Commissioner were deemed appropriate. The appeal was dismissed, upholding the decision to deny Cenvat credit based on Xerox copies of bills of entry.