2017 (8) TMI 1108 - HC - Central Excise

CENVAT credit - moulds - Whether Hon ble CESTAT is legally justified in not denying the Cenvat credit on the moulds on the basis of a Chartered Engineer Certificate whereas relevant Central Excise invoices clearly indicated that said moulds were removed by the assessee? - Held that - The Adjudicating Authority relied upon the invoices to hold that the moulds had not been removed. The invoices merely evidence a sale. They do not evidence the movement of the goods in respect whereof, they are raised - We will presume that absent anything else an invoice prima facie indicates the delivery of possession of the goods sold. However, in the present case, this presumption is rebutted by the certificate issued by the Chartered Engineer. There is nothing that indicates that the certificate issued by the Chartered Engineer is false. The Tribunal cannot be faulted for having relied upon the certificate issued by the Chartered Engineer. The Tribunal rightly proceeded on the basis of the balance of probabilities - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Delay in re-filing the appeal
2. Denial of Cenvat credit on moulds
3. Validity of Chartered Engineer Certificate
4. Physical removal of moulds from premises
5. Reliance on invoices and delivery challans
6. Tribunal's reliance on Chartered Engineer Certificate

Analysis:
1. The judgment addressed the issue of delay in re-filing the appeal, where the court allowed the application and condoned the delay of 121 days in re-filing the appeal. Another application for delay of 13 days in filing the appeal was also allowed by the court.

2. The main case involved the denial of Cenvat credit on moulds by the Customs, Excise and Service Tax Appellate Tribunal. The appellant raised questions regarding the justification of denying the credit based on a Chartered Engineer Certificate and the consideration of the certificate by the Tribunal without being presented to the Original Adjudicating Authority.

3. The court determined that the issue was not a substantial question of law but a matter of fact. It revolved around whether the moulds for automobile parts were removed from the premises or not. The appellant contended that the moulds remained with them, supported by the Chartered Engineer Certificate.

4. It was established that for reversing the Cenvat credit, physical removal of the moulds from the premises was necessary. The court emphasized that the key question was whether the moulds were physically removed or not, and the Adjudicating Authority's reliance on invoices was insufficient as they only indicated a sale, not the actual movement of goods.

5. The court noted that while invoices generally indicate delivery of goods, this presumption was rebutted by the Chartered Engineer Certificate. The Department could have verified the certificate's authenticity through inspections but failed to do so. Consequently, the Tribunal's reliance on the certificate was deemed reasonable, based on the balance of probabilities.

6. Ultimately, the court dismissed the appeal, affirming the Tribunal's decision to rely on the Chartered Engineer Certificate and finding no fault in their approach. The judgment concluded that the Tribunal's decision was not perverse or absurd, aligning with the court's agreement with the Tribunal's reasoning.