2019 (10) TMI 1332 - AT - Central Excise

CENVAT Credit - duty paying invoices - supplementary invoice for Special Additional Duty paid by the supplier of goods - HELD THAT - The endorsement on the invoice that no cenvat credit is available is made in compliance to the condition prescribed under N/N. 102/2007 which is required for refund of SAD to the importer. In this case as per the correspondence between the customs and Jurisdictional Assistant Commissioner, it is clear that the supplier has not claimed any refund of SAD and subsequently issued a supplementary invoice in respect of SAD - Since the appellant has borne the burden of SAD by way of supplementary invoice, the endorsement made in the original invoice stand nullified, therefore, only on the basis of the endorsement Cenvat credit cannot be denied and there is no dispute from the record that SAD has been passed on by the supplier to the appellant. There are no reason why Cenvat credit should be denied - appeal allowed - decided in favor of appellant.

Summary

Issues:
Availment of Cenvat credit on a supplementary invoice with an endorsement denying credit availability.

Analysis:
The case involved the appellant availing Cenvat credit on a supplementary invoice for Special Additional Duty paid by the supplier, despite an initial endorsement on the original invoice denying credit availability. The department denied the credit based on this endorsement. The appellant's counsel argued that the supplier did not claim a refund under Notification No. 102/2007-Cus., supported by a Customs JNCH certificate, and issued a supplementary invoice for SAD, making the appellant eligible for the credit.

The Revenue, represented by the Superintendent, maintained the denial of credit citing the endorsement on the invoice as conclusive. After hearing both sides and examining the records, the Member found that the endorsement denying Cenvat credit was in compliance with requirements for SAD refund under Notification No. 102/2007. However, correspondence between customs and the Assistant Commissioner revealed that the supplier did not claim any SAD refund and issued a supplementary invoice for SAD, transferring the burden to the appellant. Consequently, the original invoice's endorsement was nullified, and the Member ruled that denial of Cenvat credit solely based on the endorsement was unjustified. The Member noted that there was no dispute that the SAD had been passed on to the appellant, leading to the conclusion that the appellant was entitled to the Cenvat credit. The impugned order was set aside, and the appeal was allowed.