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TMI Blog2018 (3) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... verification and allowing the credit under dispute. "Per M. Veeraiyan: This is an appeal against the order of the Commissioner (Appeals) No.08/CE/DLH/2007 dated 8.2.2007. 2. Heard both sides. 3. The relevant facts, in brief, are that the appellants are manufacturer of biscuits and they have received sugar directly from the manufacturer and occasionally from the dealers and have been availing Cenvat credit of duty paid on the sugar. A Circular by CBEC dated 6.3.2003 was issued permitting the credit of AED (GSI) in respect of the inputs received from 1.4.2000. An amendment to Rule 3 of the Cenvat Credit Rules was made on 1.3.2004 giving retrospective application to the amendment granting Cenvat credit of AED (GSI). The appellant recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dealers were for an amount naturally including the entire excise duty amount and other expenses and profit of margin of the dealers. However, during the relevant period, as only BED was eligible as credit, the said dealers have not specifically indicated the AED(GSI) in the invoices issued by them. However, they gave reference of the original invoices of the manufacturers under which the duty has been paid by the said manufacturers of sugar. Consequent to clarification of the Board dated 6.3.2003, the appellants have taken credit of AED (GSI) in respect of sugar procured from the dealers as well. The original authority denied the credit on the ground that Rule 7 does not refer to supplementary invoices by the dealers as relevant documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the question of imposition of penalty does not arise as the Board issued clarification in 2003 permitting retrospective availment of Cenvat credit on AED (GSI) followed by the amendment of Rule 3 of Cenvat Credit Rules in 2004. 5. Learned SDR submits that the supplementary invoices by the dealers are not recognised in Rule 7 of the Cenvat Credit Rules and the concession has to be given strictly in terms of the said Rule and therefore, he seeks upholding of the order of the Commissioner (Appeals). 6. I have carefully considered the submissions from both sides. It is not in dispute that the AED (GSI) paid on sugar is eligible as Cenvat credit in view of retrospective amendment of Rule 3 of the Cenvat Credit Rules. It is also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the supplementary invoices issued by the registered dealers subject to verification of particulars of manufacturer s invoices referred in the original invoices of the registered dealers. The original authority will issue order after granting reasonable opportunity of hearing to the appellants. (M. Veeraiyan) Member (Technical)" 2. Pursuant to the remand, the Additional Commissioner taking note of the direction of this Tribunal directed them to submit the original invoices of the sugar manufacturer detailed herein the details of AED (GSI) paid by the manufacturer. The appellant submitted at the time of hearing that they have no business connection with the manufacturer and further the first stage dealer - M/s Delhi Sugar T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturer's invoices is not possible. Consequently, as per direction of this Tribunal, the said verification is not possible and accordingly the plea of granting credit of AED (GSI) is not tenable and accordingly the order of recovery of the same is upheld. 4. Being aggrieved the appellant is before this Tribunal. The learned Counsel states that they have done their best of what was possible under the scheme of the Act in order to lead evidence. Alternatively it is evident from the facts on record that the Adjudicating Authority also failed to exercise jurisdiction by not referring for cross-verification of the relevant data from the jurisdictional assessing authority of the manufacturer in spite of the full details of the concerned manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant have categorically stated that the said evidence is not available with them or with the first stage dealer - Delhi Sugar Trading Company. I further find that there is no adverse report material on record as regards non-availability of Cenvat credit, in question. I further find that the appellant is in possession of proper documents as required under the Cenvat Credit Rules, readwith the Service Tax Rules for availing the Cenvat credit, in question. Accordingly, I set aside the impugned order and allow this appeal. I further direct that the appellant is entitled to take the Cenvat credit, in question. Accordingly, the appeal is allowed with consequential benefits in accordance with law. (Order dictated and pronounced in open court.) X X X X Extracts X X X X X X X X Extracts X X X X
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