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TMI Blog2018 (4) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... IAL MEMBER Shri Arun Cherian, Advocate, For the Appellant Shri Pakshirajan, Asst. Commissioner(AR), For the Respondent Per: S.S GARG The present appeal is directed against the impugned order dt. 23/03/2017 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of innerwear, leisure wear, sportswear, thermal wear and socks for men and women falling under chapter sub-heading 61, 62 and 63 of the Central Excise Tariff Act, 1985. During the course of verification of the records of the appellants, it was noticed by the Internal Audit Party that they had availed cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... She further submitted that the Commissioner(AppeaIs) has not denied the fact that the Assistant Commissioner while upholding the denial of credit had not disputed the fact that the goods received back from dealers were duty paid and only the lapse on the part of the appellant was that they had not followed the procedures prescribed under Rule 16 of the Central Excise Rules. She further submitted that substantive right of the assessee cannot be denied on procedural lapse, In support of this submission, she relied upon the following decisions: - i. CCE Delhi-III vs, Golden Tobacco Mfg. co. Pvt. Ltd. [2016(344) ELT 597 (Tri. Del.)] ii. Hindustan Coca Cola Beverages Pvt. Ltd. Vs. CCE ST, Patna [2016(343) ELT 1016 (Tri. Kolkata)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse this credit once again. 6. On the other hand, learned AR reiterated the impugned order. 7. After considering the submissions of both sides and perusal of records, I find that there is no dispute regarding the goods received back from dealer which were duty paid and the only allegation against the appellant is that the credit notes are not the proper document for claiming CENVAT credit I also find that subsequently the appellant has paid the duty at the time of clearance. Further I find that in the impugned order, CENVAT credit is being denied on procedural lapse which is not deniable under law. By following the ratios of various decisions cited supra, I am of the view that the impugned order is not sustainable in law and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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