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TMI Blog2018 (7) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... use of M/s Hemant Trading (another firm created by the assessee proprietor). That firm did not carry on any activity and appear to be fictitious one. Nevertheless the product in question, PVC resin, was used to manufacture PVC battery separator by the assessee - There is no dispute that the inputs used i.e. PVR resin was by the assessee M/s Icon Industries; in fact, the basic duty liability and penalty have been imposed on the basis of these findings. However, it is equally a matter of record that certain quantity of PVR resin too was used as a raw material. There may be no doubt that with respect to other inputs the assessee did not posses any document. However, that ought not have blinded the authority taking note of material which did exist on record (in the form of the payments made towards CVD) which can be legitimately claimed as input credit by the assessee. The respondent-Central Excise Authorities are directed to proceed to grant such Cenvat credit as is permissible to the appellant/assessee, having regard to the documents which are on record and which may be relevant and can be produced by it for the purpose - appeal allowed - decided in favor of appellant. - CEAC 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case neither the supplier of imported raw material (M/s Marvellous Impex) nor the manufacturer (i.e. the noticee) were registered at the relevant time. I also find that the clearances of finished goods were made in clandestine manner without the accompanying invoices prescribed under the rules and without keeping any account as prescribed under the central excise law. 67. I observe that all these conditions starting from the basic requirement of getting registered with the central excise authorities, maintenance of the records and clearance on payment of appropriate central excise duty are not merely procedural but are of the kind that the Apex Court in the above referred case has described as of substantive nature as likely to facilitate commission of fraud and introduce administrative inconveniences. 68. Thus in due deference to the observations made in judgement of the -Apex Court cited above, the contention of the noticee cannot be accepted and hence the credit of duty paid on the imported raw material cannot be given to the noticee for the reasons as above. The assessee appealed to the Tribunal, which by its impugned order rejected its contention with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... None of these conditions are met in the present case. Learned counsel for the assessee contends that the sales tax is unsustainable and contrary to the binding decisions of the Supreme Court in Formica India Division vs. Collector of Central Excise, 1995(77) ELT 511 (SC) as well as those of Allahabad High Court in Commissioner of Service Tax Noida vs. Atrenta India Pvt. Ltd., 2017 (48) STR 361; Rukmini Industries vs. Commissioner of Central Excise, 2014(308) ELT 649 (AP) and that of the Karnataka High Court in mPORTAL India Wireless Solutions P. Ltd. vs. C.S.T., 2012 (27) STR 134. It is urged that the assessee was in fact given the benefit of an SSI Unit while computing its final tax liability but its claim for Cenvat credit turned down because it did not possess any document. It was submitted that since there was no dispute at least with respect to the countervailing duty rather revenue s case and the findings of the Commissioner were that Marevellous Implex was another proprietorship concern of Mr. Amit Madan and that it had imported PVC resin that found its way to the assessee s unit instead of being utilized by ostensible user M/s Hemant Trading (a fictitious firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 56-A, the proper course was to permit them to do so rather than denying to them the benefit on the technical ground that the point of time when they could have done so had elapsed and they could not be permitted to comply with Rule 56-A after that stage had passed. We are, therefore, of the opinion that the appellants should be permitted to avail of the benefit of the notification by complying at this stage with Rule 56-A to the satisfaction of the Department. In Rukmini Industries (supra), like in the present case, the issue involved was denial of credit on the ground of suppression of manufacture and clearance of duty of goods. The High Court even while rejecting the assessee s grievance with respect to the invocation of the extended period of limitation, nevertheless proceeded to permit the benefit of credit that could be availed in respect of purchase of intermediary products or inputs. The observations of the High Court in fact refer to the law declared by the Supreme Court in Formica (supra) and read as follows : 16. The very premise on which a show-cause notice was issued resulting in the adjudication order fastening liability of the excise duty, is that appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which imposes such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside. From the above discussion, it is clear that the question of granting of benefit of input credit or input tax adjustment towards final tax liability of an assessee has engaged the attention of the Court on many occasions. The context of these disputes have been many fold; in one class of cases, the benefit was claimed for a pre-excise registration period; in the other class of cases, it was when the benefit of exemption notification could not be given to the manufacturer; in yet another category, the issue involved like in the present case, was clandestine removal. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in units I II of M/s ICON industries for the manufacture and clearance of PVC battery separators without accounting and without payment of Central Excise duty; vii) The party was also misleading-the govt. agency by showing their address in the invoices as 84A, Badli Extension, Delhi.. 42 for the goods manufactured and cleared from the units I 2 located at Mangolpuri Industrial Area; viii) No proper records were maintained either in unit-l or in unit-II for Purchase of raw material and clearance of finished goods. 39. Since both the manufacturing units belong to the same firm i.e. M/s. Icon Industries having the same proprietor manufacturing the same product in the same name, the clearances of both the units was clubbed and Central Excise duty is being demanded from both the units as kacha private records were recovered from both the units evidencing the surreptitious manufacture and clearance of excusable goods further. 40. Shri Amit Madan was also the proprietor of M/s Marvellous Impex, Delhi who were engaged in the import of PVC Resin, a raw material for PVC battery separators. By showing the PVC Resins imported by M/s Marvellous Impex sold to M/s Heman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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