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TMI Blog2018 (6) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... accounted for in the books of account of the appellant, therefore, the debit note containing all the details as required under the rule 9(2) of Cenvat Credit Rules, 2004 is valid documents for the purpose of taking cenvat credit - the appellant is entitled for the Cenvat credit on the debit note. Taking into consideration the fact that even first authority while considering the matter has admitted the debit note which was produced though holding it to be in contravention under Rule 9 of the Cenvat Credit Rules, 2004 but in view of the different decisions of the tribunal, the view taken by the tribunal is required to be accepted and the same is accepted. Appeal dismissed - decided against appellant-Revenue. - D.B. Central/Excise Appeal No. 8 / 2016 - - - Dated:- 15-11-2017 - MR. K.S. JHAVERI AND MR. VIJAY KUMAR VYAS, JJ. For The Appellant : Mr. Anurag Kalavatiya For The Respondent : Mr. Sanjay Jhanwar with Ms. Archana Judgment 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby tribunal has allowed the appeal of the assessee. 2. This court while admitting the appeal on 18.4.2016 framed following subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from his depot or from the premises of the consignment agent of the said importer if the said depot or the premises, as the case may be, is registered in terms of the provisions of Central Excise Rules, 2002; ( iv) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or ( b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or shortlevy by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision must be strictly construed. If exemption is available on complying with certain conditions, the conditions have to be mandatorily complied with. In Commissioner of Central Excise v. Hari Chand Gopal, : (2011) 1 SCC 236, the Hon'ble Supreme Court held as under:-- 29. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption. The same principle was reiterated in Commissioner of Customs (Preventive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y paying documents and extracts of Part I and Part II of Form RG 23A maintained along with the monthly return to the Superintendent of Central Excise, who shall after verifying their genuineness, deface such documents and return the same to the manufacturer. A perusal of the above provisions of the Rules shows that in order to claim Modvat credit the original copy of the invoice is required to be produced. There is no provision for granting Modvat credit on the basis of a carbon copy. If we presume that carbon copy in a case like the one in hand could be treated as original then the finding of fact by the appellate authority or Tribunal have to be on the record. In the present case the finding of fact is against the dealer that TISCO does not issue invoice on a carbon copy so as to be treated as original for the purpose of Rule 57G of the Rules. The contention of the counsel for the assessee that carbon copy has been properly verified and defaced does not impress us as in the present case adjudication has to be only on the question of law. We find no merit in the contention raised by the learned Counsel for the assessee. Moreover, laying down a blanket principle permitting Modva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce prescribed and relevant documents required as per law and the petitioner wrongly availed of MODVAT credit of of ₹ 7,8,830/- on the strength of invalid documents. The breach on the part of petitioner was not a trivial or technical breach as contended by the learned Counsel for the petitioner. From the orders passed by the Revenue Authorities, it is clear that relevant and necessary documents were not finished by the petitioner in support of claim for MODVAT Credit as was required under the law at that point of time. Any subsequent change in Rules would not come to the rescue of the petitioner, because, ordinarily, changes in the procedural law are prospective unless clear intention is discernable to give retrospective effect. After careful reading of the said notification, we find no indication either in the notification or sub-Rule (11) inserted below sub-Rule (10) of Rule 57G to give retrospective operation. That apart, the initial order was passed by the Adjudicatory Authority on 30.9.1997 whereas notification as aforesaid was issued on 9-Feb-1999 or thereabout and for this reason also, it is of no avail to the petitioner. 4.5 He further relied upon the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay under TN VAT Act. While so extending the concession, it is open to the Legislature to impose conditions. Section 19(11) is one such condition imposed making it mandatory for the registered dealer to claim Input Tax Credit before the end of the financial year or before ninety days from the date of purchase, whichever is later. The entitlement to claim Input Tax Credit is created by TN VAT Act and the terms on which Input Tax Credit can be claimed must be strictly observed. 48. We are unable to accept the said contention, since the scheme of Section 19 is not in the nature of a machinery provision, rather it is a substantive provision stipulating the contingencies and the types of transaction done by a registered dealer which would qualify for availing input tax credit. 60. In India Agencies case: (2005) 2 SCC 129] the Hon'ble Supreme Court held as follows:- 26. We are of the opinion that a liberal construction was not justified having regard to the scheme of the Act and the Rules in this regard and if there was any hardship, it was for the legislature to take appropriate action to make suitable provisions in that regard. It is also settled rule of interpretation tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he particulars required to be mentioned in the invoice/bill for the sole reason that it is not titled as invoice/bill but titled as debit note; that GAIL (I) limited has taken centralized service tax registration in Vadodara based on the centralized accounting and invoice/debit note can be issued by any branch office of GAIL (I) limited; that debit note are bearing and serial number, service tax registration number, name and address of the service provider and service recipient, description of service, value of taxable service and service tax charged thereon; that the appellant submitted in this respect that the issuance of separate invoices is not relevant to the issue because first for recovering any particular amount only one document i.e. either a debit note or an invoice is issued and, secondly the impugned credit is taken on the basis of the subject debit notes for the services received by them, the payment for which has duly been made by them; that the present matter of the appellant is squarely covered by the ratio of the decisions cited in the appeal memo. It is clear that for availment Cenvat credit in respect of inputs, capital goods and input services the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. At the interest of Revenue, if the Adjudicating Authority so chooses he may send copies of debit note relied by Assessee to the concerned jurisdictional officer for verifying whether the service tax realised by those debit notes have gone in to the treasury. In the event of any adverse report obtained law shall operate on its own volition. Appeal is allowed with aforesaid observations and reasoning. 6.2 In Emmes Metals Pvt. Ltd. vs. Commissioner of Central Excise Appeal No.E/1015/2011 decided on 9.3.2016, it has been held as under :- 5. I have carefully considered the submissions made by both the sides. As per Rule 9 of the Cenvat Credit Rules the documents prescribed for taking Cenvat Credit in respect of input services are invoice, bill or challan issued by provider of input service as per Rule 4A of the Service Tax Rules. The challan shall contain certain information such as name, address and registration number of the service provider, the name and address of the recipient, description and value of service tax amount and service tax registration number. From the fact, it is clear that whatever information required in terms of Rule 4A in the document, more or less all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, verify whether service has been received and whether all the particulars as required under the Rules are available in the debit notes and adjudicate the matter afresh. If documents contain details required under Rule 98 (sic) [9(2)] of CENVAT Credit Rules, benefit of Service Tax Credit may be extended. Needless to say the appellants shall be given an opportunity to present their case and also the Assistant Commissioner shall be free to get any verification if necessary done. 6.4 In Commissioner of Central Excise, Indore vs. Grasim Industries Ltd. 2011 [24] S.T.R. 691 (CESTAT Delhi), it has been held as under :- 4. The only point of dispute in this case is as to whether the Respondent could take Cenvat credit of service tax paid in respect of input services received, on the basis of documents called 'debit notes' issued by service provider. The department's objection is that debit note is not the document prescribed in Rule 9 of the Cenvat Credit Rules, 2004 for availing Cenvat credit. However, there is a clear finding in the impugned order that it is not disputed that document called 'debit note', contain the details like the name and registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Business Auxiliary Service. These debit notes also mention the full address of the service providers and have been issued to the appellant company. The debit notes mentioned the description of the service as project commission on various projects and the amount of the commission and also the Service Tax paid on the same. According to the ld. Counsel for the appellant, the project commission is the commission charged for procuring the sales orders for supply to various projects and as such, the commission is in respect of the Business Auxiliary Service provided by these dealers. The plea of the ld. Joint CDR is that the description of the service and its classification has not been mentioned and therefore, these debit notes cannot be treated as invoices issued by the service provider for the purpose of Cenvat credit. It is also pleaded that the amounts mentioned are merely dealers' margin and not the commission for procuring sales orders. After considering the rival submissions, on this point, I am of the view that on perusal of the sample debit notes, it is clear that these debit notes are in respect of the Business Auxiliary Service for procuring orders provided by the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 725(CESTAT Bangalore), it has been held as under :- 1. This application is for waiver of predeposit and stay of recovery. The lower authorities have denied Cenvat credit amounting to ₹ 12,31,828/- to the appellant for the period from 3-5-2007 to 29- 2-2008 and have also imposed equal amount of penalty on them. The only ground on which the credit was denied is that the appellant availed the benefit on the strength of debit notes issued by M/s. Container Corporation of India and similar private service providers. After examining the records and considering the submissions made by both sides, we have found prima facie case for the appellant inasmuch as the so-called 'debit notes' (copies available on record) disclose all the essential particulars required of a statutory invoice. Prima facie, one should not look at the title of the document but should rather see the contents thereof to determine its status. An order of this Tribunal cited by the ld. Counsel viz. CCE, Salem v. Pallipalayam Spinners (P) Ltd. [8010-TIOL-1723-CESTAT-MAD] appears to support the present appellant. In that case, debit notes, inter alia, were accepted as proper documents for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The Tribunal, therefore, took the view that the same has to be considered as part of the bill of entry and both of them cannot be segregated and seen in isolation as done by the Department. The Tribunal, on the basis of these materials on record, took the view that the credit has to be allowed in view of the provisions of Rule 9(2) of the Central Excise Rules (sic). 3. Since, the Tribunal has recorded finding of facts and it is also in consonance with Rule 9(2) of the Central Excise Rules (sic), we are of the view that no substantial question of law arises out of the order of the CESTAT. We, therefore, summarily dismiss this Tax Appeal. 7.1 He also relied upon the decision of Delhi High Court in Commissioner of Income Tax vs. Moonlight Builders and Developers (2008) 307 ITR 197 (Delhi) wherein it has been held as under:- 8. Precisely the same thing has happened insofar as these appeals are concerned. The revenue has accepted the primary orders passed by the Tribunal on 14-7-2003 and 14-6-2004 but has chosen to challenge the orders passed by the Tribunal in the present appeals which merely follow these primary orders. There is no reason given by the revenue for this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e permitted to avail of the benefit of the notification by complying at this stage with Rule 56A to the satisfaction of the Department. 7.3 He also relied upon the two judgments which have been referred by the tribunal in Supreme Industries Ltd. vs. Commissioner of Central Excise LTU, Mumbai reported in 2014- TIOL-115-CESTAT-Mum, it has been held as under:- 6. In the case of Grasim Industries Ltd. (supra), this Tribunal held that the assessee is entitled to take credit on the basis of 'debit notes' as the same is having all the particulars required to be mentioned in the invoices. Therefore, following the ratio of the decision in the case of Grasim Industries Ltd. (supra), I allow the credit taken by the appellant and set aside the impugned order. Appeal is allowed with consequential relief, if any. 7.4 In M/s. Aditya Polysack Pvt. Ltd. vs. Commissioner of Central Excise and Service Tax, Jaipur-I 2015-TIOL-996-CESTAT-DEL, it has been held as under:- 5. In the case of Godrej Consumer Products Ltd. (supra) the view taken up by this Tribunal was in the absence of the appellant. Therefore, said decision is not applicable. Further, I find that in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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