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TMI Blog2020 (3) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... em, the Ld. First appellate authority sought to deny it only on the ground that the appellant should have approached the authorities to obtain permission for availing the CENVAT Credit, in terms of the proviso to Rule 9(2) of CCR 2004. A perusal of this rule would show that if the invoice does not contain all the particulars but contains some particulars then the Dy. Commissioner or Asst. Commissioner may, if he is satisfied that the goods are covered by the said document have been received and accounted for, allow the credit. This is not the case in the present appeal. The name of the consignee is clearly given in the invoice and the consignee could have availed the CENVAT Credit. All assets and liabilities of the consignee have, by virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.44/2012(H-IV) CE, dated 23.03.2012 passed by Commissioner of Customs, Central Excise Service Tax (Appeals-II), Hyderabad. 2. Heard both sides and perused the records. 3. The appellant manufactures coconut oil, tooth paste, soaps and detergents and is registered with the Central Excise Department. The Officers of Central Excise, on receiving intelligence that the appellant was not properly discharging central excise duty and not maintaining books of accounts properly, searched the factory premises of the appellant on 18.12.2010 and found some discrepancies as follows: (i) Differential duty required to be paid on account of wrong calculation of abatement during the period 2009-10 amounting to ₹ 57,179/-. This was calcul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mated with them. She would submit that the mere fact that the invoices were issued to them in the name of their former registered name should not deprive them the CENVAT Credit entitlement. 5. The appellant had, however, paid the entire amounts except the CENVAT Credit on capital goods received in the invoices issued in their former registered name, the show cause notice was issued to the appellant M/s Farmax India Limited, on 19.07.2011, covering the period 2009-10 and 2010-11, invoking the extended period of limitation under Section 11A, demanding all the aforesaid amounts along with interest, under Section 11AB. It was also proposed to impose penalty upon the appellant under section 11AC/Rule 25 of Central Excise Rules, 2002 for cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the excise duty works out to ₹ 6647/-. Ld. Counsel would submit that this was on account of rats destroying some of their products and on being pointed out during the stock verification, they had immediately paid the central excise duty involved. The fact of payment has been recorded in the impugned order. As far as the differential duty on account of wrong calculation of the abatement during 2009-10 is concerned, the differential duty works out to ₹ 57,179/- and the basis for this was the invoices produced by the appellants themselves. On being pointed out, they paid the differential duty along with interest well before the show cause notice was issued. She also asserts that they have paid the excess credit of 50% availed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, are contained in the said document provided that if the said document does not contain all the particulars but contains the details of duty payable, description of the goods or assesable value, Central Excise, name and address of the factory or warehouse and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods covered by the said document have been received and accounted for in the books of the account of the receiver, he may allow the CENVAT Credit. Therefore, the appellants should have approached the lower authority and should have obtained the permission for availing the credit. In this case it is not coming out from the records whether they approac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant to again approach the Asst. Commissioner or Dy. Commissioner to take permission to take credit of the goods which have been received. We, therefore, find no force in the observations of the first appellate authority with respect to this amount. 11. We find that the first appellate authority has correctly set aside the personal penalties imposed by the original authority as no show cause notice was issued at all to them. 12. As far as the imposition of penalties under section 11AC upon the appellant is concerned, we do not find in this factual matrix any element necessary to invoke either the extended period of limitation for demanding under section 11A or imposing penalty under Section 11AC. The basis of the entire de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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