2017 (2) TMI 145 - AT - Central Excise

CENVAT credit - Rule 3 (5) of CCR - supplier initially received the duty paid inputs and taken the credit and subsequently supply the same to the appellant and duty was debited in the RG 23 Part II register - denial on the ground that entry was not recorded in RG 23 Register of the supplier - Held that - no evidence was produced by the appellant to the effect that the same input was received by the supplier and credit was availed thereof and in their RG 23 Part II register. Without this evidence it is difficult to accept that the removal of input by the supplier is u/r 3(5) of CCR - Ld. Counsel in his argument submitted that appellant will approach the supplier and try to get the proof of taking the credit and receipt of the input by the supplier. In the interest of justice one opportunity can be given to the appellant to submit the documents as discussed above to prove that input supplied by the supplier and duty passed thereon is against input initially received by them and credit thereof was taken - appeal allowed by way of remand.

Summary

Issues:
Availment of Cenvat credit on dealer's invoice, Dispute over entry in RG 23 Register, Duty payment by supplier, Rule 3(5) of Cenvat Credit Rules, Evidence of credit availed by supplier, Appellant's submission lacking evidence, Remand to original adjudicating authority.

Analysis:

1. Availment of Cenvat credit on dealer's invoice:
The appellant availed Cenvat credit on an invoice issued by the supplier in the format of a dealer's invoice. The department disputed this credit due to the entry not being recorded in the RG 23 Register of the supplier.

2. Dispute over entry in RG 23 Register:
The appellant argued that despite the invoice format being that of a dealer's invoice, the supplier issued it in their capacity as a manufacturer, as evidenced by the manufacturer registration number on the invoice. The duty shown on the invoice was debited in the RG 23 Part II register of the supplier and reflected in the ER 1 return. The appellant claimed that the supplier cleared the input under Rule 3(5) of Cenvat Credit Rules, allowing for clearance of inputs on payment of duty equivalent to the Cenvat credit availed. However, the appellant failed to provide evidence of credit availed by the supplier at the time of input receipt.

3. Duty payment by supplier under Rule 3(5):
The Revenue argued that the invoices issued by the supplier were dealer's invoices and not recorded in the RG 23 Part II register. They contended that there was no evidence of the input being earlier received by the supplier and credit being availed. The Revenue maintained that the appellant was not entitled to Cenvat credit under Rule 3(5) due to lack of evidence.

4. Remand to original adjudicating authority:
After considering both sides, the Member (Judicial) found that the appellant failed to provide evidence of the input being received by the supplier and credit being availed. In the interest of justice, the appellant was given an opportunity to submit the necessary documents to prove the connection between the input supplied by the supplier and the duty passed on. The matter was remanded to the original adjudicating authority for verification based on the documents to be produced by the appellant. The impugned order was set aside, and the appeal was allowed by way of remand.