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TMI Blog2009 (6) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... vat Credit Rules, 2004 (hereinafter referred as the Rules) in as much as Rule 3 stipulates that a manufacture of final product shall be allowed to take credit of duty paid on any input or capital goods received in the factory of manufacture of final product or premises of the output service provider on or after 10th day of September, 2004 and Rule 4 stipulates that the Cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer; that it was also alleged that the appellant failed to inform to the Department of the above facts and accordingly, the extended period is invokable; that on the basis of the above, the appellant was directed to show cause as to why wrongly availed Cenvat credit of Rs. 5,49,674/- should not be demanded under Rule 14 read with Section 11A of the Central Excise Act, 1944 (hereinafter referred as the Act) and the said amount reversed by the appellant vide Cenvat Credit Register should not be adjusted against the said demand, interest of Rs. 58,235/- paid vide TR6 challan should not be appropriated against the interest payable by the appellant under Rule 14 of the Rules read with Section 11AB of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the goods exported under Bond from the premises of the job worker with due permission and concurrence of the jurisdictional Commissioner of Central Excise and other officers and the action of the Anti-Evasion Squad was disregarding the said jurisdictional excise officers; (vi) that as the appellant was not in a position to utilize the credit towards clearances for home consumption, the appellant is entitled for refund of Cenvat credit in accordance with the Rule 5 and hence the recovery of the said amount by the department was illegal; 3. PH was held on 16-6-2009 at 02.30 PM. Shri L.B. Attar, Advocate, duly authorized by the appellant appeared before me at 02.30 PM along with Shri S.P. Jadhav, Excise Officer of the appellant company. None appeared from department s side, despite intimation. During the hearing, in addition to reiterating the submissions made in the appeal memorandum, Shri Attar stressed the following - (a) that the Cenvat credit was not deniable on the goods directly sent to the job worker, as held by the Hon ble Tribunal in the case of R. D. Electronics Pvt. Ltd. v. CCE, Delhi - 2003 (161) E.L.T. 1023 (Tri.-Delhi); (b) that the penalty/interest not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise officers; that to support his contentions, he has also produced copies of permissions given by the Central Excise officers; that the appellant further claims that the Cenvat credit of duty paid on inputs which were directly sent to the job worker s premises, was not deniable as held by the Hon ble Tribunal Delhi in the case of R.D. Electronics Pvt. Ltd. v. CCE, Delhi (2003 (161) E.L.T. 1023 (Tri.-Delhi); that without prejudice to the above, the appellant further claims that when the disputed credit was already paid before issue of SCN, the question of imposition of equal penalty along with interest also do not arise as held by the Apex Court and Tribunals in the decisions referred at para 2 (iv) supra. 4.1 From the above discussions, the following facts emerge that the credit was denied solely on the ground that the inputs were not brought into the factory of the appellant and the resultant final products were also not brought to the appellant s factory and the same were cleared for export under Bond from the job worker s premises. As contended by the appellant, the Cenvat credit of duty paid on inputs which were directly sent to the job worker s premises was not deni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises, the duty paid nature of inputs and the fact of usage of the same in the manufacture of excisable goods are not under dispute in the issue on hand. Therefore, there is no justification to deny the Cenvat credit to the appellant. The only deviation appears in the instant case is that the appellant has not informed to the Department of the procedures followed as set out by the Board s circular by him. But that seems to be a technical violation . There are catenas of decisions pointing that the substantial benefit should not be denied on account of technical violation , once the above conditions are fulfilled. 4.3 In addition to the above discussions, rules position also support the stand of the appellant. Rule 4(5)(a) of the Cenvat Credit Rules, 2002 as well as Rule 4(5)(a) the Cenvat Credit Rules, 2004 do not prohibit any assessee from sending the inputs directly to the job worker s premises. The only condition set out therein is that the inputs which were sent for any process mentioned therein, should be received by the assessee within the period of 180 days and once if it is not received within the above stipulated period, the assessee shall debit the credit availed alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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