2005 (8) TMI 30 - HC - Central Excise

Actual quantity of input was less than the quantity shown in invoice because of loss in transit - Credit availed of CVD paid on inputs as per invoice Held that entire inputs goods has been used only in mfg. of end product Moreover transit loss was found to be normal loss Credit admissible

Summary

Issues:
- Availability of Modvat Credit on short receipt of HFO in the factory
- Liability for penalty under section 11AC of the Central Excise Act, 1944 for excess availment of Modvat/Cenvat credit after 01.04.2000

Issue 1: Availability of Modvat Credit on short receipt of HFO in the factory

The case involved a dispute regarding the availability of Modvat Credit to the assessee on the quantity of Heavy Fuel Oil (HFO) short received in the factory. The assessee had received a consignment of HFO in the factory, but the actual quantity was marginally less than stated in the invoice due to normal transit loss. The Revenue contended that the assessee was not entitled to avail Modvat Credit on the short receipt of HFO. However, the Commissioner Excise (Appeals) and the Tribunal held that the assessee could avail full Modvat Credit based on the Counter Vailing Duty (CVD) paid on the inputs received in the factory, despite the marginal loss in transit. They emphasized that the availing of Modvat Credit was in order, and the penalty for excess availment was set aside.

Issue 2: Liability for penalty under section 11AC of the Central Excise Act, 1944 for excess availment of Modvat/Cenvat credit after 01.04.2000

The Revenue argued that Modvat Credit is available only on the inputs used, irrespective of the actual quantity consigned under the invoices. On the other hand, the respondent's counsel contended that since there was no diversion of goods and the entire quantity received was utilized for manufacturing the end product, the assessee was eligible for Modvat Credit based on the CVD paid on the goods received. The High Court agreed with the Tribunal's view that the CVD paid was for the goods entirely used as inputs in manufacturing the end product. They highlighted that Rule 57(9) requires a correlation between the Modvat Credit availed and the duty paid on the goods received and used in the factory. As long as the invoices were accurate and there was no diversion of inputs, no curtailment of Modvat Credit was permissible. Therefore, the Tribunal's conclusion was deemed justified, and the High Court dismissed the appeal, ruling out any penalty for over-availment of Modvat Credit.

In conclusion, the High Court upheld the Tribunal's decision, emphasizing the importance of accurate invoices and the correlation between duty payment and Modvat Credit availed. The judgment clarified that in cases where there is no diversion of goods and the entire quantity received is used as inputs, the assessee is entitled to avail Modvat Credit, even if there is a marginal loss in transit.