2012 (10) TMI 547 - AT - Central Excise

Duty paying documents disallowance of cenvat credit - alleged that appellant had availed Modvat credit on the basis of invoices without serial number, details of manufacturer as required under Rule 57GG read with Notification No. 32/94-C.E. (N.T.), vehicle numbers, the details of supplier and manufacturers as required by both Notification & Circular dated 18-8-1994 Held that - Authorities could not find non-receipt of the goods in the premises of the appellant. When they took only two months for issuance of Show Cause Notice they did not make any enquiry at the supplier s end. When the receipt of the goods was not questioned nor delivery of the seller is questioned, the Show Cause Notice lost its foundation. In absence of any allegation of non-receipt of the goods and also for any allegation of non-delivery of the goods, the appellant succeeds credit allowed demand set aside

Summary

Issues:
1. Delay in seeking appeal remedy due to health reasons of the authorized officer.
2. History of multiple litigations before different forums.
3. Disallowance of Cenvat credit and Modvat credit.
4. Length of litigation and waiver of pre-deposit requirement.
5. Non-receipt and non-delivery of goods in relation to duty demand.
6. Penalty imposition for failure to provide details from 1994.

Analysis:
1. The counsel for the Appellant explained a delay of 22 days in seeking appeal remedy due to health reasons of the authorized officer. The Revenue did not object, and the MA (COD) was allowed, admitting the appeal.

2. The case had a history of multiple litigations before different forums, with this being the third round before the Tribunal. The Appellant had previously been considered leniently for waiver of pre-deposit. The disallowance of Cenvat credit was reduced from Rs. 2,27,796 to Rs. 1,94,884 at the adjudication stage. The counsel argued for leniency due to technical difficulties in invoices and the aging of the litigation.

3. The claimant was required to submit all particulars for the admissibility of the claim, as stated by the Departmental Representative.

4. After hearing both sides and perusing the record, the Tribunal decided to dispose of both the stay application and the appeal together due to the lengthy litigation. Following a judgment of the High Court of Delhi, the requirement of pre-deposit was waived, and the appeal was disposed of accordingly.

5. The authorities found lapses in the availing of Modvat credit based on incomplete invoices. However, as there was no evidence of non-receipt or non-delivery of goods and the Show Cause Notice lacked foundation, the duty demand of Rs. 1,94,884 was annulled, and the appeal was allowed.

6. Regarding the penalty, the appellant's failure to provide details from 1994 led to the confirmation of a penalty of Rs. 10,000, considering the litigational attitude of the appellant.

In conclusion, the appeal was partly allowed, annulling the duty demand but confirming the penalty imposition.