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TMI Blog2020 (3) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... liers end may not be able to do the same as power of assessment has been taken away even from him. Board s Circular which has been issued without taking into consideration the implications of the provisions and the instructions, cannot be applied blindly for drawing adverse conclusion against the assessee. It was also held that merely on the strength of the said Circular dated 14.01.2011 Cenvat Credit cannot be denied, when there is no such provision in the Cenvat Credit Rules, 2004. Appeal allowed - decided in favor of appellant. - Excise Appeal No.76633 of 2018 - FINAL ORDER NO. 75358/2020 - Dated:- 17-3-2020 - HON BLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) Shri Abhishek Jaju, Advocate for the Appellant (s) Shri S.Mukhopadhyay, Authorized Representative for the Respondent (s) ORDER P.K.CHOUDHARY : Briefly stated the facts of the case are that the appellant is a manufacturer of MS ingots. For the manufacture of their final product, the appellant assessee procured raw materials such as pig iron, sponge iron, MS scrap and slag. Period of dispute is from November 2009 to August 2014. During the audit of the records, monthly ER-1 and other returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (emphasis supplied) Neuland Laboratories Ltd. Vs. CCE, Hyderabad-I 4. After hearing learned Authorised Representative (AR) on behalf of Revenue and going through the records including written submissions filed by the appellant, I find that the issue is no longer res integra and there are several decisions taking a view that the assessing officer incharge of the assessee who has taken the credit cannot sit in judgment as to whether the duty was payable or not on the goods supplied. What is required to be examined is whether duty has been paid or not and if duty has been paid by the supplier/assessee, the receiving assessee cannot be found fault with if he takes Cenvat credit of the duty paid so long it is used as input and Cenvat credit is admissible. I find that the decision of Hon ble High Court of Madras in the case of Commissioner of Central Excise, Chennai-I v. CEGAT, Chennai [2006 (202) E.L.T. 753 (Mad.)] is applicable to the facts of this case. In that case, the Hon ble High Court came to the conclusion that Rule 57A(1) of Central Excise Rules, 1944 provides for availment of Cenvat credit of duty paid and not payable. The High Court observed that this dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the fact that he is not required to determine the duty payable since what is provided in Rule 3 is that he shall be eligible to take credit of the duty paid. He is not required to determine the duty payable which is a part of assessment and is required to be done by the supplier of the goods. If the arguments advance by learned AR are accepted, the duty payable is also to be determined by the receiver of the goods and he has to determine that aspect first and then take credit, the assessee is required to assess all the goods/services received which is definitely not contemplated by the statute. This aspect is considered along with the provisions of Rule 9 of the Cenvat Credit Rules. Sub-rule (5) of Rule 9 provides that manufacturer has to maintain proper records for receipt, disposal, consumption and inventory of capital goods/inputs in which relevant information regarding the value, duty paid, Cenvat credit taken and utilised and the person from whom the inputs or capital goods have been purchased is recorded. It is to be noted even here, there is no mention of duty payable. The responsibility of the receiver of the inputs/capital goods is to ensure that duty has been paid an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or not by the manufacturer supplier and then avail credit. Even a jurisdictional Central Excise officer at the manufacturers suppliers end may not be able to do the same as power of assessment has been taken away even from him. That being the case, the Board s Circular which has been issued without taking into consideration the implications of the provisions and the instructions, cannot be applied blindly for drawing adverse conclusion against the assessee. It was also held that merely on the strength of the said Circular dated 14.01.2011 Cenvat Credit cannot be denied, when there is no such provision in the Cenvat Credit Rules, 2004. CCE, Chennai-I vs. CEGAT, Chennai 2.Learned standing Counsel for the department, Shri Veeraraghavan, has contended that since the raw material of the assessee had been exempted from duty vide Notification dated 28-2- 1999, he could not claim Modvat credit. However, from the perusal of the impugned order, it appears that, in fact, duty was paid by the assessee s supplier despite the aforesaid notification. It may be that the supplier was unaware of the exemption notification or it may be that some condition of the notification was not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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