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TMI Blog2017 (12) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Appeal No. 134 of 2017 - - - Dated:- 21-12-2017 - Sanjay Yadav And S. K. Awasthi, JJ. Shri Ajay Kumar Prasad with Shri Tej Singh Mahadik, learned counsel for the appellant JUDGMENT Per Justice Sanjay Yadav This Appeal under Section 35G of Central Excise Act, 1944, at the instance of an assessee, takes exception to order dated 22/9/2017 in Case No.A/56989/2017/Ex(DB) by Customs Excise and Service Tax Appellate Tribunal, New Delhi. (2) The Appellant engaged in the manufacture of Plastic Laminates and Paper Laminates falling under Chapter 39 and Chapter 48 of the first schedule to the Central Excise Tariff Act, 1985 at Industrial Area Malanpur, Bhind. Appellant has another unit engaged in similar manufacturing activities at Haridwar, Uttarakhnad. (3) Pertinently, the unit at Haridwar is not operating under Cenvat Scheme, their final product being exempted. (4) During relevant period i.e. April, 2010 to July, 2014, the Appellant procured its inputs from various Manufacturers/Suppliers including M/s. Fibro-Plast Corporation, Thane and M/s. Built Graphic Paper Products Ltd., Pune including Polyester Film, Poly Film, Coated Paper for its Haridwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fty Four Thousand Seven Hundred Sixty Eight Only) upon the Noticee under Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 and further ordered for recovery of interest at the prescribed rate on the duty confirmed under Section 11AA/Section 11AB of 1944 Act. The Commissioner found: 25. I have gone through the defence putforth by the Noticee as discussed above. I observe that the Noticee availed Cenvat Credit on the basis of documents raised by Noticee's sister unit situated at SIDKUL, Haridwar Uttarakhand, which is availing area based exemption provided under the Notification No.50/2003 CE Dated 10.06.2003. Since the unit at SIDKUL, Haridwar is not operating under Cenvat Scheme being their final products exempted; it is not authorized to pass on Cenvat Credit under the provisions of Rule 3(5) of Cenvat Credit Rules, 2004. The unit at SIDKUL, Haridwar while removing the raw materials as such, charged thereon NIL rate of duty and issued the invoices in favour of the Noticee and to pass on the CENVAT credit, attached the supplier's invoices endorsed in favour of the Noticee, by putting the following remarks at the back of each in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a view to curb misuse of Cenvat credit scheme. The registered assessees operating under Cenvat credit scheme are only allowed to issue fresh invoice as and when they intend to transfer the goods to a third party. The details to be shown on the invoice to be issued has also been prescribed under Rule 11 of the Central Excise Rules, 2002 which states that the invoice shall be serially numbered and shall contain the registration no. address of the concerned central excise division, name of the consignee, description, classification, time date of removal, mode of transport and vehicle registration no., rate of duty, quantity and value of goods and the duty payable thereon. I observe that the stock transfer invoices issued by the consignor mentions Excise duty exempted vide Notification No.50/2003-CE dated 10.06.2003 and also shows that duty payable as zero. Thus if it is assumed that the invoice is as per the provisions of Rule 11(2) of Central Excise Rules, 2002, the Noticee can not avail Cenvat credit in excess of Zero as stipulated under the provisions of Rule 3 of Cenvat credit Rules, 2004. The endorsed invoice is completely in favour of SIDKUL unit on which all the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eously refunded, the same alongwith interest shall be recovered from the manufacturer or the provider of the output service under the provisions of Sections 11A and 11AA of the Act. 29. As per the provision of Rule -15(2) In case, where the CENVAT Credit in respect of input or capital goods or input service has been taken or utilized wrongly by reason of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of the Excise Act, or of the Rules made thereunder with intent to evade the payment of duty then, manufacturer shall also be liable to pay penalty in terms of provision of Section-11AC of the Excise Act . 30. I find from the above that the Noticee have manipulated the records for taking the cenvat credit fraudulently which was not admissible to them. The facts about fraudulent availment have been noticed during the course of audit only and the notice never disclosed these facts to the Department. Therefore extended period is rightly invokable in the instant case. 31. In view of the above facts and discussions, I find that the noticee has contravened the provisions of Rule 3 read with Rule 9(1) of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;double benefit' in the facts circumstances of the present case? H.3 Whether Appellant Malanpur Unit can be said to have availed 'double benefit' in the present case when case as set up by the Department in the concerned Show Cause Notice dated 08.04.2015 was not to the effect that Appellant has availed ''double benefit'' in the present case, as there was neither any allegation against the Appellant in the concerned Show Cause Notice dated 08.04.2015 regarding nonreceipt of the impugned inputs in the Appellant Malanpur Unit, nor the Appellant's above mentioned Sister Unit located at Haridwar has, admittedly, availed any Cenvat Credit of Duty paid on the impugned inputs because it is not availing Cenvat Credit facility, as it is operating under Notification No.50/2003-C.E. dated 10.06.2003 which grants exemption from whole of Central Excise Duty leviable on its final products? H.4 Whether Hon'ble CESTAT has committed grave illegality by denying the benefit of Cenvat Credit to the Appellant Malanpur Unit in the present case when the issue regarding admissibility of Cenvat Credit to a user-manufacturer of Duty Paid on inputs, on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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