2013 (12) TMI 1347 - AT - Central Excise

Availment of Cenvat credit - Waiver of Pre-deposit Held that - The container number which is indicated on the bill of entry is reflecting clearly on the transport documents i.e. on the LR issued by the transporters as having been delivered to the appellants Relying upon COMMISSIONER OF CUSTOMS & C. EX., VAPI Versus DNH SPINNERS 2009 (7) TMI 130 - CESTAT, AHMEDABAD - this correlation definitely demonstrates that appellant has received the consignment, though the bill of entry is in the name of their Head Office - there is no dispute as regards the receipt of consignment at the appellant s factory, non-mentioning of appellant s name in the bill of entry or endorsement by the Head Office is a curable defect Prima facie the appellant is able to establish case in their favour stay granted.

Summary

Issues:
Waiver of pre-deposit of confirmed duty and penalty under Rule 15(2) of Cenvat Credit Rules, 2004 based on ineligible Cenvat credit availed by the appellant.

Analysis:
The appellant filed a stay petition seeking the waiver of pre-deposit of Rs. 3,06,369/- confirmed as duty along with an equal amount of penalty under Rule 15(2) of Cenvat Credit Rules, 2004. The lower authorities confirmed these amounts as ineligible Cenvat credit availed by the appellant on imported polyesters based on bills of entry in the name of the Head Office. The appellant's counsel argued that despite the bill of entry being in the name of the Head Office, the appellant factory could still avail the Cenvat credit once the goods were received at the factory premises. The counsel relied on previous decisions to support this argument. The departmental representative reiterated the findings of the lower authorities.

Upon reviewing the records and the correlation presented by the appellant's counsel regarding the movement of Polyester imported under a specific bill of entry, the Tribunal observed that the container number on the bill of entry matched the transport documents, indicating delivery to the appellant at Silvassa. This correlation demonstrated that the appellant had indeed received the consignment, even though the bill of entry was in the name of the Head Office. The Tribunal concluded that the non-mentioning of the appellant's name in the bill of entry was a curable defect since there was no dispute regarding the receipt of the consignment at the appellant's factory.

Consequently, the Tribunal found that the appellant had established a strong prima facie case for the waiver of pre-deposit of the amounts in question and ordered the recovery to be stayed until the appeal was disposed of. The decision was dictated and pronounced in the Court by Mr. M.V. Ravindaran.