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TMI Blog2016 (12) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment as a 'Depot'. 1.3. HPCL terminal supplied raw materials namely Asphalt Bulk (VG-10) and Asphalt Bulk (VG-30) to the appellants for manufacture of CRMB on job work basis as well as for the appellant own case. HPCL terminal, in the capacity of depot, issued invoices through their online JDE system to the appellants. The appellants took CENVAT credit of excise duty paid on the raw material received from HPCL terminal which were further used for manufacture of CRMB on job work basis. Due to the escalation of the price of the raw material supplied to the appellants, HPCL was required to collect the enhanced price as well as central excise duty thereon from the appellants. HPCL refinery paid the excise duty of Rs. 48,75,312/- on the enhanced price, which was collected from the appellants. 1 .4. HPCL Terminal on behalf of HPCL refinery had to pass on the excise duty so collected from the Appellant by issuing supplementary invoices. However, in the online system of generating invoices, it is not possible to generate supplementary invoices. Therefore, HPCL terminal had issued manual supplementary invoices from the old stationery available with them. Inadvertently, the old i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was only technical mistake and that there was no positive act with intent to evade payment of duty and that the notice issued invoking extended period is unsustainable. 2.2. The Learned Counsel led the Bench to each piece of evidence to substantiate the contention that the mention of 'First Stage Dealer' in the supplementary invoice was only an inadvertent mistake. He submitted that HPCL/T is nothing but a depot of HPCL/R and therefore can be said to be an extended arm of the manufacturer. Rule 9(1) provides for issue of supplementary invoice by 'manufacturer' and not by 'First Stage Dealer'. As soon as the error was pointed out, the appellant explained the same to be only an inadvertent mistake to department and also offered the accounts for verification. The appellant had written to HPCL/T seeking clarification and reply was received from them stating that they had forgotten to delete words 'First Stage dealer' while issuing the supplementary invoices using old stationery and that the said defect can be rectified. Thereafter, appellant submitted rectified invoices. But these rectified invoices were not considered or accepted by the department. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terminal purchases goods from HPCL refinery. In fact, the Department has not attempted to prove as to how HPCL terminal is a first stage dealer. c. Appellants availed credit on the basis of the supplementary invoices. Though these invoices contain the words 'First Stage Dealer', the invoices were received from HPCL/T which is a Depot of manufacturer. The invoices happened to contain the words 'First Stage Dealer' because pre-printed manual stationary was used inadvertently. d. The show-cause notice dated 9.1 1.2012 was issued to appellants proposing to recover the credit along with interest and for imposition of penalty. The appellants vide letter dated 23.11.2012 sought clarification from HPCL/T with regard to the defect in the supplementary invoices. On 25.01.2013, HPCL/T replied as below: During the period January 10 - December 10 the bitumen (VG 10 & VG 30) tanks at Visakha Terminal were attached to HPCL, VR & these tanks were under Registration No. AAACH1118B023 of VR. The differential duty on VG 10 & VG 30 stock transfers to locations were paid by VR and hence the issuance of supplementary CENVAT invoices has happened In fact, we have issued these supplemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is not issued by manufacturer and therefore not in order as per Rule Rule 9(1) gives the list/type of documents on the basis of which credit can be taken. Sub-section 2 of Rule 9 lays down that no credit shall be taken unless all the particulars as prescribed under Central Excise Rules, 2002 or the Service Tax Rules, 1994 as the case may be, are contained in the document. The proviso to this sub-section states that if the document does not contain ail particulars and contains necessary details as to payment of duty/tax registration number etc., then the Deputy Commissioner of Central Excise or the Assistant Commissioner as the case may be, if satisfied that goods covered by the said document are properly accounted may allow floe credit. The proviso thus gives a discretion to the concerned Commissioner to allow the credit in case of doubt with regard to any document/invoice. The Commissioner can require the assessee to get the documents rectified and then allow the credit after satisfying himself that there is no evasion of duty. The appellants have put forward a consistent and believable case supported by documentary evidence that the defect in the invoice happened only due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity was not satisfied. Further, the appellants also obtained certificates from the input manufacturers and produced the same to the adjudicating authority. We have seen specimens of these documents also on record. These certificates certified that the entire quantity of cotton yam covered by the relevant factory invoices (referred to as 'gate passes' in the depot invoices) were transferred to the depots and were sold therefrom under the depot invoices to the appellants. The adjudicating authority, nevertheless, was yet to be satisfied. ... ... 9. In the case of Expo international Vs. CCE, Kanpur 2009 (247) ELT 705 (Tri-Del) the Tribunal held that non mention of the words 'duplicate for transport' on the invoice is only a procedural lapse and therefore credit cannot be denied. The relevant portion reads as below: 3. I have carefully considered the submissions from both the sides and perused the records. In this case the Appellant had purchased the goods from M/s. Sarin Sales Corporation, who are first stage dealer alid who in tum had purchased the goods form manufacturer M/S. ATV Projects, Raigarh. The only ground on which the Modvat credit is denied by the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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