2014 (4) TMI 602 - AT - Central Excise

Denial of CENVAT Credit - Xerox copy of invoices - Penalty - Held that - when common bill of entry in the name of several importers is filed by the courier agency and photocopies are given to the importers with the importers name appearing in it, the Cenvat credit cannot be denied to the importer on the ground that the original bill of entry in the name of importer was not produced. At the time of scrutiny of the Central Excise records, the appellant had only the photocopies of the invoices and, as such, the original invoices were not available. Though the appellant plead that at the time of receipt of the goods, the original invoices were available and credit have been taken on that basis only and the original invoices had been misplaced, there is no evidence in this regard. - photocopies on the basis of which the Cenvat credit has been taken are not the copies attested by the Jurisdictional Superintendent, Central Excise. In view of this, I hold that the appellant are not eligible for the Cenvat credit taken on the basis of the zerox copies of the invoices. As regards, the issue of limitation, I am of the view that since the appellant had not disclosed that this credit has been taken on the basis of photocopies, the extended period has been correctly applied, as such, the part of the order upholding the Cenvat credit taken of Rs. 32,153/- penalty of equal amount is to be upheld - Decided partly in favour of assessee.

Summary

Issues:
1. Eligibility of Cenvat credit based on photocopies of original documents.
2. Validity of Cenvat credit for imported goods through courier.
3. Availability of original duty paying documents for domestically procured goods.
4. Application of extended period for recovery of Cenvat credit.

Analysis:
1. The appellant, a manufacturer of telephone sets, took Cenvat credit amounting to Rs. 42,347/- based on photocopies of original documents for the period from July 2005 to March 2007. The department issued a show cause notice challenging the eligibility of the appellant for the credit. The Assistant Commissioner confirmed the demand for Cenvat credit along with interest and imposed a penalty. The Commissioner (Appeals) upheld this decision, leading to the present appeal.

2. The appellant argued that the Cenvat credit of Rs. 10,194/- for imported goods through courier was valid as the bill of entry was filed by the courier and the appellant received a certified photocopy. Citing relevant tribunal decisions, the appellant contended that the credit cannot be denied based on photocopies when the receipt of goods is not disputed. The Tribunal agreed with this argument, setting aside the denial of Cenvat credit for this amount.

3. Concerning the Cenvat credit of Rs. 32,153/- for domestically procured goods, the appellant claimed that the original invoices were available at the time of receipt but were later misplaced. The Tribunal noted that the photocopies of the invoices, on which the credit was based, were not attested by the Jurisdictional Superintendent as required. Therefore, the Tribunal held that the appellant was not eligible for this credit. The Tribunal also upheld the application of the extended period for recovery due to the appellant's failure to disclose the use of photocopies for claiming credit.

4. In conclusion, the Tribunal upheld the demand for Cenvat credit amounting to Rs. 32,153/- and the penalty of equal amount. However, the remaining demands for Cenvat credit, interest, and penalty were set aside. The impugned order was modified accordingly.