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TMI Blog2018 (11) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... the cenvat Credit facility under Cenvat Credit Rules. The Department conducted an audit for the period w.e.f. July 2011 to August 2013 on 07.10.2013. An audit report No.628/13 dated 18.11.2013 was prepared alleging that the Cenvat Credit of Rs. 1,88,723/- as availed by the appellant is not admissible as the invoice was not in the name of the appellant. Resultantly, a show cause notice No.899 dated 26.10.2015 was issued proposing the recovery of the said amount as allegedly being wrongly taken and utilized cenvat credit. The said demand was initially confirmed vide Order-in-Original No.10 dated 02.11.2016. Being aggrieved, the appeal was filed before Commissioner (Appeals), who vide the order under challenge has confirmed the demand, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise given to the Assistant Commissioner, Central Excise on 09.11.2015. Though the show cause notice was issued prior to the said acknowledgement after a due verification, but the subsequent adjudication by both the authorities below is beyond the relevant facts of the case. Vide the order under challenge also ld. Commissioner (Appeals) has confirmed the entire demand ignoring the above mentioned facts and forming a rigid compliance to Rule 9 of Cenvat Credit Rules, 2004. Order is accordingly prayed to be set aside. Appeal is prayed to be allowed. 5. Ld. A.R. while rebutting these arguments has submitted that there is no infirmity in the order under challenge. It has duly been appreciated based on the evidence that two invoices; namely, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the appellant as the consignee was not mentioned and it was M/s. Tirupati Proteins Pvt. Ltd. who only was mentioned in the invoice as buyer. Thus, even if, the Department's case for said invoice to have no inadvertent mistake in the invoice is concerned, the only difference it makes is that instead of appellant, M/s. Tirupati Proteins Pvt. Ltd. would have been entitled for availing the said credit i.e. there is no case to deny the availment or utilisation of Cenvat Credit. 7. Further, the appellant has brought to my notice several correspondences viz. E-mail dated 23rd October, 2015 from M/s. N.K. Proteins Pvt. Ltd. to the appellant acknowledging that the name of M/s. Tirupati Proteins Pvt. Ltd. has wrongly been mentioned in invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken was not in favour of the appellant. He has committed the similar mistake of relying upon Bilities No. 1819 dated 21.06.2012, which apparently is not applicable nor in reference with the invoice No.1511. It becomes clear that the Commissioner (Appeals) has ignored the entire contention of the appellant despite his duty of being judicious in nature. He is observed to have been absolutely unfair while still relying upon Rule 9 as the basis for denying the demand in sheer ignorance of the enquiry by the Department itself. 9. Further perusal of record shows that the CBEC Circular... No. 441/7/99 CS dated 23.02.1999 was brought to his notice. According to which cenvat credit is clarified to not to be denied based solely on procedural g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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