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TMI Blog2014 (2) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... no duty was paid upto 24.02.1999. On 25.02.1999 and 26.02.1999, the banks were on strike. On 25.02.1999, the noticee approached Central Excise Commissionerate, Rajkot for depositing the cheques issued by them towards the Customs duty and in their letter they declared that they had sufficient balance in their relevant bank accounts to cover the amount of cheques. However, the cheques were not realized until 16.03.1999 due to non-availability of balance in their bank accounts. In other words, the duty leviable on the consignments of the said goods cleared under the said 84 Bills of Entry was actually paid on 17.03.1999. 2.1 In the Union Budget presented on 27.02.1999, the duty structure on project imports was increased from 10% CVD only to 5% Basic Customs Duty + 10% of Basic Customs Duty as surcharge + 10% CVD. The investigations of DRI, Ahmedabad had revealed that the noticee, with malafide intention to get the benefit of lower duty rates as applicable to the goods imported and cleared before 1999 Budget, had deposited their Cheques with Central Excise Department, when they knew that appellant had insufficient funds in the respective bank accounts. Since the duty leviable on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y invoices contained in Rule 9(1)(b) of CENVAT Credit Rules, 2004 will not be applicable to their case. It was also argued that duty paid under a challan and a mention of the word 'Challan' made in Explanation to Rule 9(1)(b) will be with respect to those categories of goods which are imported by importer or registered dealers and subsequently sold. That a procedural provision of Rule 9 prescribing documents for taking CENVAT Credit, cannot have overriding effect on Rule 3 of CENVAT Credit Rules, 2004 which make the credit admissible. He relied upon the orders of Karnataka High Court in the case of Karnataka Soaps & Detergents Ltd Vs CCE Mysore [2005 (192) ELT 892 (Tri-Bang)] and [2008 (258) ELT 62 (Kar.)] ii) That even if the appellants case is considered to be falling under Rule 9(1)(b) still by virtue of the following case laws, credit was rightly availed: a) Karnataka Soaps & Detergents Ltd Vs CCE Mysore 2005 (192) ELT 892 (Tri-Bang) b) Karnataka Soaps & Detergents Ltd Vs CCE Mysore 2008 (258) ELT 62 (Kar.) c) Jai Raj Ispat Ltd Vs CCE Hyderabad 2007 (217) ELT 272 (Tri-Bang) d) CCE Hyderabad Vs Jairaj Ispat Ltd 2009 (245) ELT 118 (A.P.) e) M/s Godrej Industries Ltd Vs CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illful mis-statement on the part of the appellant hence CENVAT Credit was rightly denied by the adjudicating authority. iii) That judgment of Karnataka High Court in the case of Karnataka Soaps & Detergents Vs CCE Mysore [2008 (258) ELT 62 (Kar.)] is not applicable to the facts and circumstances of this case in as much as 'Explanation' given under Rule 9(1)(b) of the CENVAT Credit Rules, 2004 was not existing in the Rule 9(1)(b) explained by Hon'ble High Court and appellant has wrongly placed reliance on the judgment of Karnataka High Court. That it is clear from the Explanation under Rule 9(1)(b) that but for the 'Explanation' added Challans would not have been valid documents for taking CENVAT Credit and that in view of the Gujarat High Court's order in the case of Dhanlaxmi Texturisers Vs UoI [2005 (179) ELT 23 (Guj.)] order of High Court of Karnataka in the case of Karnataka Soaps & Detergents Vs UoI (supra) need not be followed as a precedent. iv) Ld. A.R. also relied upon the following case-laws in support of his arguments:- a) CCE Calcutta Vs Alnoori Tobacco Products 2004 (170) ELT 135 (SC) b) Housing & Dev. Corp. Ltd (HUDCO) Vs CST Ahmedabad 2012 (26) STR 531 (Tri-Ahmd) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the appellant therefore no CENVAT Credit will be admissible to the appellant. 5.1 Provisions of Rule 9(1) are reproduced below:- Rule 9: Documents and accounts- (1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely :- (a) an invoice issued by- (i) a manufacturer for clearance of - (I) inputs or capital goods from his factory or 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 importer; (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 the provisions of Central Excise Rules, 2002; (iv) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or (b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) The invoice shall be prepared in triplicate in the following manner, namely:- (i) The original copy being marked as ORIGINAL FOR BUYER (ii) The duplicate copy marked as DUPLICATE FOR TRANSPORTER (iii) The triplicate copy marked as TRIPLICATE FOR ASSESSEE 5.3 From the above prescription, it is evident that for the preparation of an invoice, there has to be a buyer to whom goods are sold. Further, Rule 11(7) of the Central Excise Rules, 2002 prescribe the following: RULE 11. Goods to be removed on invoice. - (7) The provisions of this rule shall apply mutatis mutandis to goods supplied by a first stage dealer or a second stage dealer: Provided that in case of the first stage dealer receiving imported goods under an invoice bearing an indication that the credit of additional duty of customs levied on the said goods under sub-section (5) of section 3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be admissible, the said dealer shall on the resale of the said imported goods, indicate on the invoice issued by him that no credit of the additional duty levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; Provided further that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to imported capital goods as per law laid down by Delhi CESTAT in the case of Birla Jute Manufacturing Co. Ltd Vs CC Calcutta (supra). In Para-7 of this judgment, inter alia, it was held that refund claims and demands under Section 27 & Section 28 of the Customs Act, 1962 do involve re-assessment of the duty originally assessed. Further, as per the judgment of CCE Raipur Vs Ambuja Cement Eastern Ltd (supra) CENVAT Credit will be admissible on duty paying TR-6 challan when it is not disputed that goods were used in the manufacture of excisable goods to be cleared on payment of duty. Further, in Para 40 of the judgment of Karnataka High Court in the case of Karnataka Soaps & Detergent Ltd Vs CCE Mysore (supra) it is held that documents specified in Rule 7 (present Rule 9 of CENVAT Credit Rules, 2004) of the earlier CENVAT Credit Rules is only illustrative in nature and cannot bar taking of CENVAT Credit under Rule 3 of CENVAT Credit Rules. When additional duty is paid under re-assessment or on being pointed out by the Revenue then the credit of such duty paid will be admissible as CENVAT Credit to the appellant under Rule 9(1)(c) of the CENVAT Credit Rules, 2004. In view of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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