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TMI Blog2015 (11) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... se invoices. No investigation has been done at the end of transporter or check post to ascertain the facts against the impugned invoices, the manufacturer buyers had received goods or not. Moreover, no other corroborative evidence has been produced by the Revenue from where these goods i.e. brass sheets procured by manufacturer buyers. In the absence of any corroborative evidence, the Cenvat credit to manufacturer buyer cannot be denied. Cenvat credit cannot be denied to manufacturer buyers. Further, in the case of Delhi Control Service this Tribunal (2013 (8) TMI 921 - CESTAT NEW DELHI) has taken the same view. With these observations, the orders of denial of Cenvat credit to manufacturer buyers and consequently demand of duty along with interest are not sustainable. Therefore, the penalties on manufacturer buyers are not imposable. As in some cases, some amount has been paid by M/s. AMCo. & AMCorpn. during the course of investigation, that amount cannot be claimed by manufacturer buyer / M/s. AMCo. & AMCorpn. as refund, consequent to this order. As demand of duty against manufacturer buyers is not sustainable, consequently, penalties on manufacturer buyers cannot be imposed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-1031 of 2011 - Ex (SM) , Excise Appeal No. 2895 -2897 of 2011 - Ex (SM) , Excise Appeal No. 1527 of 2012 - Ex (SM) , Excise Appeal No. 1611- 1613 of 2012 - Ex (SM) , Excise Appeal No. 55960, 56156 - 56158 of 2013 - Ex (SM) , Excise Appeal No. 57130 - 57147 of 2013 - Ex (SM) , Excise Appeal No. 58169 - 58171 of 2013 - Ex (SM) , Excise Appeal No. 54103 - 54105 of 2014 - Ex (SM) , Excise Appeal No. 58247 of 2013 - Ex (SM) , Excise Appeal No. 3376 of 2010 - Ex (SM) And Excise Appeal No. 3473 of 2010 - Ex (SM) For the Petitioner : Shri B L Narasimhan, Shri Ravinder Singh, Ms. Seema Jain, Shri V K Gupta, Ms. Sukriti Das, and Shri Ravi Chopra, Advocates For the Respondent : Shri R K Mishra, AR ORDER Per Ashok Jindal : The appellants namely, Arihanta Metal Company, Shri Rahul Baid and Shri Sidharth Baid are in appeals against the impugned orders. 2. The manufacturer buyers namely, Woven Gold Bath Impressions P Ltd.; M/s. DE-OR Metal Pvt Ltd.; M/s. Fine Technology (India) P Ltd.; and M/s. Gillard Radio Products Pvt Ltd.; M/s. Mex Switchgears Pvt. Ltd. are in appeal against the order of demand of interest and imposing the penalties. 3. The manufacturing bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals before learned Commissioner (Appeals). In the cases, the invoices issued by M/s. Arihanta Metal Co., the adjudication orders were confirmed. Against these orders, the manufacturer buyers, AMCo., Shri Sidharth Baid and Shri Rahul Baid are in appeals before me. 7. In the case of invoices issued by M/s. Arihanta Metal Corpn., the amount paid by M/s. AM Corpn. was appropriated, the demand against manufacturer buyers were set aside and penalties imposed on manufacturer buyers, M/s. AM Corpn., Shri Sidharth Baid and Shri Rahul Baid were also dropped. Against these orders, Revenue is in appeal before me. 8. Therefore all the assessee are before me. 9. In these set of facts as the issue is common, therefore, I am deciding the issue by a common order. 10. The contentions of the Advocates appearing on behalf of the manufacturer buyer is that they have taken the Cenvat credit on the strength of invoices issued by AMCo. AMCorpn. which were duty paid and all the particulars required as per Rule 9 of the CCR, 2004 are mentioned therein. Therefore, they have taken the Cenvat credit correctly. It is further submitted that description show in the invoices issued AMCo. AMCorpn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roborative evidence, the penalty on AMCo. AMCorpn., Shri Sidharth Baid, Shri Rahul Baid are not imposable. 13. On the other hand, learned ARs appearing on behalf of the Revenue, opposed the contention of the manufacturer buyer/ AMCo. AMCorpn., Shri Rahul Baid, Shri Sidharth Baid. It is submitted that as the description of the goods did not tally with the description of the goods supplied by the manufacturer supplier. In that case, they are not entitled to take Cenvat credit and consequently same is required to be reversed along with interest and penalties are imposable. It is also submitted that M/s. AMCo. AMCorpn. has paid certain amount during the course of investigation and same has not been contested which shows their intention to avail inadmissible credit by M/s AMCo. AMCorpn. and consequently passing on the same to manufacturing buyer without supply of the goods. Therefore, the impugned orders dropping the proceedings against the manufacturer buyers and dropping penalties against Arihanta Metal Corpn., Shri Sidharth Baid and Shri Rahul Baid is to be set aside and impugned orders demanding duty from manufacturer buyers along with interest and imposing penalties on M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r premises, the assessee is entitled to take cenvat credit. Although the description of the goods does not match with the actual receipt of the goods but the fact is not denied that these H.R. sheets have been received by the appellants in their factory. Therefore, the appellants are entitled to take cenvat credit on the goods received by them. It is not the allegation that the appellants had procured H.R. Sheets clandestinely without cover of invoice, therefore, the cenvat credit cannot be denied. In the case law cited by the learned Advocate, there is also discrepancy of the discretion of the goods as H.R. Sheets or H.R. Coils wherein the Tribunal has held that the cenvat credit is available on H.R. Sheets and the H.R. Sheets and H.R. Coils are the same. As the ratio laid down by the Tribunal in that case, although the submission of the learned Advocate that the description of the goods different but the fact is not denied, the appellants received the goods, therefore, the appellants are entitled to take credit. Hence, the impugned order is set aside and the appeal is allowed with consequential benefits. 16. I am of the view that Cenvat credit cannot be denied to manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X
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