2016 (12) TMI 593 - AT - Central Excise

Denial of CENVAT credit - forged bills of entry, on the basis of which credit was taken - Held that - I find that the appellant has availed the cenvat credit on the basis of Bills of Entry under which M/s. Micro Lab Ltd. (their supplier) have imported the goods. The claim of the appellant is that the cenvat credit has been availed in respect of inputs supplied by M/s. Micro Lab Ltd. The inputs were imported by M/s. Micro Lab Ltd. and in turn transferred to the appellant for manufacture of formulations. However, the appellant could not produce the relevant Bills of Entry duly endorsed in favour of the appellant. It has been submitted that after loss of the original Bills of Entry, the supplier has obtained certified photo copies of the Bills of Entry, but the same has not been accepted as proper documents for availing the cenvat credit by the authorities below. I note that the goods have been imported by M/s. Micro Labs Ltd. and obviously the Bills of Entry have been filed by them. In normal course, if the goods have reached the factory of M/s. Micro Labs Ltd. they would have been in a position to avail the cenvat credit. It is claimed that the goods covered by the Bills of Entry stand supplied to the appellant for further manufacture. This is not supported by any documentary evidence. The Customs attested copies of Bills of Entry can only be considered as proof of import by M/s. Micro Lab Ltd. There is nothing on record to rule out the fact that no cenvat credit has been taken by the original importer. The Dy. Commissioner under Rule 9(2) of the Cenvat Credit Rules, 2004 has been vested with the powers to satisfy himself and allow the cenvat credit as long as the documents accompanying the inputs contained all the particulars required as per cenvat credit rules. I find that the cenvat credit in the present can be allowed only if it is established that such cenvat credits have not been availed by the supplier or anyone else on the strength of these original Bills of Entry. I remand the matter to the original adjudicating authority with the direction to carry out the verification under Rule 2 of the Cenvat Credit Rules, 2004 and allow the credits after satisfying himself that the cenvat credit covered by the Bills of Entry have not been availed by M/s. Micro Lab Ltd. or any other person - appeal allowed by way of remand.

Summary

Issues:
1. Availment of cenvat credit on imported inputs without endorsed Bills of Entry.
2. Acceptance of attested photo copies of Bills of Entry for cenvat credit.
3. Interpretation of Rule 9(2) of the Cenvat Credit Rules, 2004.

Issue 1: Availment of cenvat credit on imported inputs without endorsed Bills of Entry

The appellant, engaged in pharmaceutical formulations manufacturing, received inputs from M/s. Micro Lab Ltd. under a loan license agreement. The appellant availed cenvat credit based on Bills of Entry of imported goods by M/s. Micro Lab Ltd. However, many Bills of Entry were not endorsed in the appellant's favor, leading to a demand for credit recovery by the original authority. The Commissioner (Appeals) upheld the demand, prompting the present appeal.

Issue 2: Acceptance of attested photo copies of Bills of Entry for cenvat credit

The appellant argued that after the loss of original Bills of Entry in transit, attested photo copies were obtained from the Customs authorities. These copies, endorsed in favor of the appellant, were submitted for cenvat credit approval. The appellant cited relevant judgments to support their claim. In contrast, the Departmental Representative contended that only attested photo copies were available, and it was uncertain if cenvat credit had already been claimed by the importer. The lower authorities rejected the permission based on this uncertainty.

Issue 3: Interpretation of Rule 9(2) of the Cenvat Credit Rules, 2004

The Tribunal analyzed Rule 9(2) of the Cenvat Credit Rules, 2004, which allows cenvat credit if the documents contain required particulars and the duty has been paid. The Dy. Commissioner is empowered to allow credit if satisfied that duty has been paid and the input is used in manufacturing. In this case, the Tribunal emphasized that cenvat credit could only be granted if it was proven that the supplier or any other party had not already availed credit based on the original Bills of Entry.

In conclusion, the Tribunal remanded the matter to the original adjudicating authority for verification under Rule 2 of the Cenvat Credit Rules, 2004. The authority was directed to ensure that the cenvat credit covered by the Bills of Entry had not been claimed by M/s. Micro Lab Ltd. or any other entity. The impugned order was set aside, and the issue was remanded for further examination in accordance with the legal provisions and precedents cited during the proceedings.