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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 ..... tled to avail credit of Rs. 1,28,117/-. 2. The facts leading to the filing of the Special Civil Application in nutshell are that the petitioner Firm is engaged in the business of manufacturing texturised yarns using Partially Oriented Yarn (POY) as input. In the month of April, 1994, the petitioner purchased yarns from three different dealers, who were dealers and agents of M/s. Baroda Rayon Corporation Ltd. Of Surat, a manufacturer of POY. It is the case of the petitioner that the petitioner-Company was given original invoices issued by the manufacturers with endorsement of the above dealers that yarn was sold to the petitioner by them and also bills / invoices of the dealers for the said yarn sold by them to the petitioner for which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner. 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. 8. Shri. R.J. Oza, learned Counsel, has appeared on behalf of the Respondent. He has tried to support the impugned judgment and order passed by the learned Tribunal by submitting that as such the learned Tribunal has categorically given findings with respect to the genuineness of the invoices issued by the dealer / dealers. However, when it was pointed out to Shri. Oza that the learned Tribunal has, as such, not doubted the genuineness of the invoices issued by the manufacturer, he fairly conceded to the same. He, therefore, requested that the appropriate order be passed. 9. Heard the learned Advocates for the respective parties, at length. At the outset, it is required to be noted that the petitioners have been denied Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the Cenvat or Modvat Credit is available to the assessee on the endorsed invoices issued by the intermediatory purchaser, the Rajasthan High Court observed and held as under; "8. It is not in dispute and doubt that availing of Modvat credit is not confined to an immediate purchaser from the manufacturer. The Modvat credit is availed by the person who has actually used any duty paid goods as inputs in the manufacture of goods, of the excise duty paid on such inputs by the manufacturer of such goods and the credit has not been availed in respect thereof by any other person. In the present case, on facts it is not in dispute that the invoices were issued by the manufacturer, M/s. Terene Fibers India Ltd. In favour of M/s. Reliance Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such input. 10. These requisite documents to be produced along with the declaration were to provide proof to the satisfaction of the authorities about payment of duty on such inputs in respect of which 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter, but was used by the manufacturer or by the subsequent purchaser, by obtaining endorsed bill of entry. 13. The Division Bench of this Court in Union of India v. M/s. Alcobex Metals Ltd., decided on 2nd December, 2003, has said: "Apparently, so far as the Rule itself is concerned, it speaks that what is required is a bill of entry evidencing payment of duty on such inputs whether such imported goods are used by importer for manufacture or the importer himself does not use the goods to manufacture as inputs but transfers to other who use such imported goods as inputs in manufacturing. In latter case, it is fur ther required to prove that importer has not availed refund or dues paid by him while claiming adjustment against countervaili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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