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TMI Blog2014 (1) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 16 would become otiose in respect of number of goods manufacturer inasmuch as most of the goods do not carry any identification marks on them - it is the chemicals which do not carry any marks etc. the same can be identifiable with the original clearance only on the basis of original duty paying documents and the Revenue's insistence on the identification particulars cannot be appreciated. the appellants have produced on record the detailed chart showing co-relation of each of the returned consignment with the original clearance - Revenue intended to make a case under Rule 16 Central Excise Rules 2001, it proceeded to make allegation under Rule 7 of Cenvat Credit Rules 2001 - Rule 7 lends support to Rule 16 - But substantial allegation when appears to be under Rule 16 adjudication proceeded to examine technicality of that Rule without testing the principal allegation – decided in favour of Assessee. - E/Appeal No.868/2005 - Final Order No. A/58256/2013-EX(DB) - Dated:- 21-2-2013 - Archana Wadhwa And Sahab Singh,JJ. For the Appellant : Shri Amit Jain, Adv. For the Respondent : Shri S Jain, DR PER : Sahab Singh This is an appeal filed by M/s Dhanuka Pesticid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants received back the goods under cover of invoice/challans and bills raised by their sale depot, these invoices are eligible as documents under Rule 7 of Cenvat Credit Rules. He also submits that the original excise invoices issued by the factory were also being sent by the sales depot along with challans/bills/transfer invoices to make it convenient for verification. Since there is no ground for denial of cenvat credit, there is no case for demanding of interest as well as imposition of penalty. He also points out that there is a computation error in respect of show cause notice dated 25.4.2003 in which the credit of Rs. 85,687/- has also been denied though that amount is in respect of certain cancelled invoices and not in respect of returned goods. He also relied on the decision of the Tribunal in the case of Hitesh Pesticides Ltd 2009 (243) ELT 419 and the decision of the Hon'ble High Court of Uttrakhand in the case of CCE Meerut Vs Polyplex Corporation Ltd 2008 (243) ELT 46. 3. The DR appearing for the Revenue reiterates the findings of the lower authorities and submits that the goods which were received back in the factory were not in the same packing in which they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs or multiple of five whereas it is observed by the lower authorities that in number of cases, the goods were not received in the packing of five or multiple of five but received in such quantities which are neither in five numbers nor multiple of five. It is also observed by the lower authorities that the goods have not been received in the same packing in which they were originally cleared from the factory and their identification with the duty paying documents is a remote possibility This is also admitted fact that the batch number of goods are mentioned on the outer packing of the goods which means no such batch number was mentioned on the goods themselves. In such a situation, identity of goods received back cannot be verified with goods originally cleared. 6. We therefore, are of the view that the duty paid character of the goods received in peace meal is not verifiable. The lower authorities are justified in denying the credit to the appellants. In view of the above, we hold that the appeal filed by the appellants does not have any merit and we accordingly reject the same. (Order pronounced in the open Court on...................................) Archana Wadhwa, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed documents in terms of Rule 7 of the Cenvat Credit Rules, 2002. I may make a specific reference to Show cause notice dated 25.4.2003 alleging and proposing as under: "As per Rule 16 of the Central Excise Rules, 2002, the assessee can avail CENVAT credit on returned goods as if such goods are received as inputs under CENVAT Credit Rules, 2002. Further, Rule 7 of CENVAT Credit Rules 2002 provides/prescribes the documents on which CENVAT credit can be taken by the manufacturer . The Rule 7 of the CENVAT Credit Rules 2002 provides/prescribes the following documents on which a manufacturer shall take the CENVAT credit :- (a) an invoice issued by- (i) a manufacturer for clearance of (I) inputs or capital goods from his factory or from his depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (II) inputs or capital goods as such; (ii) an importers; (iii) an importer from his depot or from the premises of the consignment agent of the said importer if the said depot or the premises, as the case may be, is registered in terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i [2009 (241) ELT 270 (Tri-Chen)], it was observed that new case different from the one which stand decided by the original adjudicating authority cannot be made. In fact I would observe that there is plethora of precedent judicial decisions laying so and there is no end for reference to all of them. As it is well settled that the Revenue has to adjudicate the matter on the basis of allegations made in the show cause notice and no new case can be made out without putting the assessee on notice, and as such, on this short ground itself the impugned orders are required to be set aside. 14. In any case and in view of the matter I find that the provisions of Rule 16 allows the assessee to receive back the damaged originally cleared goods and to avail the credit of duty paid at the time of original clearance if the said returned goods were inputs. The Revenue's objection that credit cannot be availed on the basis of documents of the sender of the goods has no merits inasmuch as in that case the manufacturer assessee would never be able to take the credit thus defeating the very purpose of existence of Rule 16. In fact, I need not go to the detailed reasoning on the said count inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the value, description duty paid on the (inputs/components/spares/accessories etc. used for such purposes) (ix) Date of issue and date of usage of such items (x) Date and mode of dispatch and (xi) Any other relevant information. The invoice raised at the time of redespatch of goods after repair, remanufacture etc., should have the endorsement "re-despatch of goods under Central Excises Rule 16". The amount of the applicable duty paid should also be mentioned in the said invoice raised. Further, a reference to the intimation filed/permission granted at the time of entry of duty paid goods should also be mentioned in the referred invoice. It is not the Revenue's case that the appellants have not maintained the proper records etc. showing the receipt of returned goods and there subsequent refining, reconditioning and clearance on payment of duty. In such a scenario, the refusal to grant the Cenvat credit would be unjust and unfair. Reference can also be made to Boards circular No.267/44/2009-CX-8 dated 25.11.09 laying down that the credit should be allowed to be availed by the manufacturer on its own invoice. 16. When viewed in the light of the above materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequential relief to the appellant as held by learned Member (Judicial)? Archana Wadhwa, J. Sahab Singh, J. 19. In view of the difference of opinion, the Registry is directed to take necessary steps to resolve the above difference in views. (Pronounced in the open court on) Archana Wadhwa, J. Sahab Singh, J. PER : D N Panda 20. Primarily reading of show cause notice and page 7 of the paper book reveals that while Revenue intended to make a case under Rule 16 Central Excise Rules 2001, it proceeded to make allegation under Rule 7 of Cenvat Credit Rules 2001. No doubt Rule 7 lends support to Rule 16. But substantial allegation when appears to be under Rule 16 adjudication proceeded to examine technicality of that Rule without testing the principal allegation. Such observation is suffice to answer the difference Ld. Judicial Member examining rule 7 in para 12 of the order reached to conclusion which appears to be proper. Accordingly, the difference is to be answered in favour of the assessee and ordered accordingly. 21. Registry is directed to place the record before the appropriate Bench for passing the majority order. (Dictated Pronounced in the open Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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