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TMI Blog2018 (8) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... has certainly traversed beyond the scope of the SCN - the impugned order is not maintainable. Whether the appellants are entitled for the credit they have availed? - Held that:- The appellants being a well-established multinational have an elaborate and fool proof method of accounting goods. All the service centres receive parts only from CWH. It is not the case of the Department that parts are dispatched or sold from CWH to places other than service centres or that Service Centres procure parts from other sources. In such a case, it is incomprehensible as to how some parts could not be held to be not correlated to be duty paid. Having dealt the issue from the issue of substantial compliance, having held that the registration itself is a procedural requirement and stock transfer invoice a duty paying document the learned Commissioner could have got the issue examined in totality from CWH and further transfer to various service centres before denying the credit - the issue requires to go to the jurisdictional authority who shall allow the credit on verifying the records at CWH and transfer to various service centres in totality, within 3 months of submission of records and eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served 6 SCNs to different service centre locations and all the SCNs were confirmed by Commissioner LTU vide orders 20-25 all dated 26.02.2009 confirming the duties as mentioned below and imposing penalty of ₹ 5,00,000/- on each of them. Appeal NO.s Service Centre Date of SCN Duty Demanded OIO No. Duty Confirmed E/574/2009 Bhiwandi 09.04.2008 Rs.1,53,34,772/- 20/2009- Commr. LTU Rs.36,67,278 /- E/576/2009 Jangalpur 23.04.2008 Rs.1,75,03,478/- 21/2009- Commr. LTU Rs.35,82,176 /- E/575/2009 Nagpur 23.04.2008 Rs.2,77,29,218/- 22/2009- Commr. LTU Rs.47,98,991 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 the date on which the goods manufactured by the manufacturer become dutiable/excisable, the manufacturer would be eligible to avail credit on the inputs lying in stock based on the documents which evidence the payment of duty. In terms of Rule 9 of the CENVAT Credit Rules, 2004, the basic input document for the purpose of availment of CENVAT Credit in respect of imported goods is the Bill of Entry; proviso to Rule 9(2) provides that even if all the particulars required to be contained in the documents are not mentioned, CENVAT Credit should not be denied if the details with respect to payment of duty, description of the goods, assessable value, name and address of factory/warehouse is mentioned in the documents. It is not the case of the Department that the goods were cleared from the Central Warehouses to any other places other than the service centres; therefore once the source of the goods is identified, the credit cannot be denied to the goods in question. 2.2. The learned counsel has also submitted that the audit of the appellants was conducted by the departmental officers on various dates from January 2007 to May 2007 and have issued audit notes; one of the objections w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imposition of penalty and demand of interest are sustainable. 4. Heard both sides and perused the records of the case. Questions that require our consideration in the case are as follows. (i). has the Commissioner traversed beyond the scope of Show Cause Notice (ii). whether the appellants are entitled for the credit they have availed? (iii). whether the appellants case is covered under the provisions of Section 11A (2B) of the Central Excise Act, 1944. 4.1 Coming to the question No.1 we find that the SCN was issued alleging that the appellants have availed credit of duty paid on goods received in their premises as on 01.06.2006 whereas the appellants, having registered themselves on 0405.2007, are only eligible to avail credit of goods received by them on or after 04.05.2007. The utilization of credit by the appellants is in contravention of Central Excise Rules, 2002. The appellants contended that they have, at the Central Warehouse, availed credit of the CVD paid at the time of import of parts lying in stock as on 01.06.2006 and the same was accepted and allowed by the department. Similarly, when the service centres availed credit on the parts which were tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants on the parts received at different service centre, from Central Ware House, during June 2006 and July 2006 holding that it is not possible to link the amount to any duty paying document (iii). Learned Commissioner allowed part of the Credit availed by the appellants on the parts Received during 01.08.2006 and 30.04.2007 holding that stock transfer invoice is a specified document and disallowed a part stating that they could not be linked to any invoice. 5. A careful perusal of the impugned order reveals that the learned commissioner has taken a different stand for different periods. While in respect of credit for the periods mentioned at (i) and (ii) above the Learned Commissioner took the stand that no duty could be discharged before 01.06.2006 before 01.06.2006; Stock Transfer Invoice is not a valid document in terms of Rule 9 of the CENVAT Credit Rules and that proper correlation between credit taken and duty payment document was not available. However, the same authority has come to the conclusion that Stock Transfer Invoice is a valid document; filing of declaration under Rule 57G and that registration by dealers were only a procedural requirement. He has relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they are liable to set aside. 6. Coming to the third issue of whether the appellant s case is fit to be considered under the provisions of Section 11(2B), we find that Central Excise Audit team has visited the premises of the appellant and have conducted audit from Jan-May 2007. At the end of the Audit they have issued an audit note dated 2/2007. One of the issues raised therein was pertaining to non-payment of duty on goods cleared from service centres consequent to the issue of Notification No 12/2006 dated 29.05.2006-CE(NT). The conclusion drawn on the objection was that since the appellants have paid the duty along with interest before issue of SCN No further action is proposed as envisaged under Section 11(2B) of Central Excise Act, 1944. The department has given the proposition being fully aware about the credit availed by the appellants and the payment of duty by them. The audit note in fact has raised some issues relating to irregular availment of CENVAT Credit. The only condition under which the provision of this section could be denied to the appellants was non-payment of duty by reason of fraud collusion suppression of fact, wilful misstatement etc. These ingredient ..... X X X X Extracts X X X X X X X X Extracts X X X X
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