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TMI Blog2014 (9) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assessing Officer namely; Assistant Commissioner, Central Excise, goes to show that the impediment felt by the revenue in allowing the respondent assessee to avail the Modvat credit was about the first dealer having sold the goods in transit by endorsing invoices before or without receiving the goods at its premises, before issuing invoices in favour of the respondent-assessee and the invoices issued by the manufacturer were endorsed evidencing the transfer of goods in transit, which carried with it proof of payment of duty on such inputs. on the basis of the endorsed invoices issued by the intermediatory purchaser and the invoices issued by the manufacturer, the assessee shall be entitled to claim the credit on the goods, on which the manufacturer has paid the duty - Following decision of UNION OF INDIA Vs. RAJASTHAN SPINNING & WEAVING MILLS LTD [2004 (6) TMI 45 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR] - Decided in favour of assessee. - Special Civil Application No. 4683 of 2004 - - - Dated:- 11-6-2014 - M. R. Shah And K. J. Thaker,JJ. For the Petitioner : Mr. Paritosh Gupta, Mr. Paresh M Dave For the Respondents : Mr. Rj Oza, Adv. Ms Dharmishta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner on the ground that the manufacturer s invoices were not in the name of the petitioner and it also doubted the genuineness of the invoices issued by the dealers, upon which the reliance was placed by the petitioner. 5. Feeling aggrieved and dissatisfied with the aforesaid three orders, more particularly, the order passed by the learned Tribunal (Annexure-E), the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. 6. Shri. Paritosh Gupta, learned Advocate appearing on behalf of the petitioner, has vehemently submitted that, as such, the petitioner did produce the invoices issued by the dealers, which were with respect to the very goods, which were manufactured and sold by the manufacturers-Baroda Rayon and it is submitted that, as such, neither the Asst. Commissioner nor the Commissioner (Appeals) considered the same. It is submitted that when same was pointed out to the Tribunal, the learned Tribunal dismissed the appeal and confirmed the order passed by the Asst. Commissioner. It is, further, submitted that the Asst. Commissioner as well as the Commissioner (Appeals)erred in holding that, since, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an admitted position that in the present case invoices are issued by the original manufacturer-Baroda Rayon, which are on the record, and the manufacturers paid the duty for the same, for which the Cenvat Credit has been claimed. It is also required to be noted that, as such, invoices issued by the manufacturer, may be in the name of the dealers, the genuineness of the same is not doubted by the Department and, as such no finding has been recorded by the learned Tribunal with respect to the genuineness of invoices issued by the original manufacturer. Therefore, the short question which arises for the consideration of this Court is, as to whether, on the basis of the invoices issued by the manufacturer, though, may be in the name of the dealers from whom the assessee had purchased the goods and the duty is paid by the manufacturer on the same goods, the purchaser can claim Cenvat Credit? 10. Identical question came to be considered by the Rajasthan High Court in UNION OF INDIA Vs. RAJASTHAN SPINNING WEAVING MILLS LTD. (Supra). Dealing with the similar situation and considering the aforesaid issue / question, whether the Cenvat or Modvat Credit is available to the assessee on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Modvat credit is availed by a manufacturer using those inputs. There is no dispute in the present case also about the fact that the endorsed invoices issued by the manufacturer evidence payment of duty on such inputs. Therefore, the only controversy, which emanates from combined reading of the order of the Assessing Officer namely; Assistant Commissioner, Central Excise, goes to show that the impediment felt by the revenue in allowing the respondentassessee to avail the Modvat credit was about the first dealer having sold the goods in transit by endorsing invoices before or without receiving the goods at its premises, before issuing invoices in favour of the respondent-assessee and the invoices issued by the manufacturer were endorsed evidencing the transfer of goods in transit, which carried with it proof of payment of duty on such inputs. 11. The trade notices referred to by the Commissioner (Appeals) clearly indicated that it was not imperative for the intermediary purchaser to have issued a separate invoice, when even the material has not actually reached the godowns to the first purchaser and who has sold to the subsequent purchaser. The sellers, in such circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty on such inputs. 11. It is fairly conceded by Shri. Oza, learned Counsel Appearing for the Respondents, that against the aforesaid decision of the Rajasthan High Court, the matter is not carried further before the Hon ble Supreme Court. We have considered the judgment rendered by the Rajasthan High Court in the case of UNION OF INDIA Vs. RAJASTHAN SPINNING WEAVING MILLS LTD. (Supra). We are in complete agreement with the view taken by the Rajasthan High Court in holding that on the basis of the endorsed invoices issued by the intermediatory purchaser and the invoices issued by the manufacturer, the assessee shall be entitled to claim the credit on the goods, on which the manufacturer has paid the duty. 12. In view of the above and for the reasons stated herein above, present petition succeeds and the impugned order bearing No. CIII/2022/WZB/2003, Dated : 30.09.2003 (Annexure-E), is hereby QUASHED and set aside and it is held that, in the present case, the petitioner was entitled to avail credit of ₹ 1,28,117/-. Necessary consequence shall follow. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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