9911796707
TMI Blog2024 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Notification No.214/86. The fact that the ownership of the goods always remained with the importer i.e. M/s Hero Exports Ltd, the activity undertaken by the appellants is that of a mere job-worker. Further, if it was the case of the Department that the conditions of Customs Notification have been violated by the importer i.e. M/s Hero Exports Ltd, the importer should have been proceeded against for any such violation and not the appellant - the appellants having received the goods in the factory; having used the same in the manufacture and clearance of excisable goods cleared on payment of duty cannot be dis-entitled to the benefit of CENVAT credit. Extended period of limitation - HELD THAT:- The Department is not free to change the stand detrimental to the appellant/ assessee. Moreover, having issued the show-cause notice, it is not free for the Department to invoke extended period in the impugned show-cause notices which are subsequent to the show-cause notice dated 08.05.2009. Further, no element of suppression, mis-statement, fraud, collusion etc. with intent to evade payment of duty has been established against the appellants. Therefore, the Department has not made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter can be made on the reverse of triplicate copy of Bill of Entry/ duplicate copy of the Bill of Entry generated on EDI system by the manufacturer/ importer that consignments are being delivered to the unit (name of the unit) for availing credit and endorsed by the Proper Officer of Customs for enabling the manufacturing unit to avail credit. 3. Learned Counsel submits that there is no dispute regarding the endorsement of Bill of Entry in favour of M/s Hero Cycles Ltd by the Proper Officer of Customs and receipt of goods directly from the Port by M/s Hero Cycles; he submits that credit should not be denied as the same is availed on the basis of an endorsed Bill of Entry. He relies on the following cases: Xerox Modicorp Ltd 2005 (192 ELT) 878 (T). Eupec- Welspun Coating India Ltd 2009 (235) ELT 347 (T). Jewel Brushes Pvt. Ltd 2009 (236) ELT 326 (T). Bando India (P) Ltd 2010 (262) ELT 1103 (T). 4. Learned Counsel submits also that out of the total credit in dispute of Rs.4,89,15,623/-, Rs.3,06,89,307/- was paid in cash and rest by the debit/ offset in the script; there is no transfer of sale of goods to M/s Hero Cycles; learned Commissioner erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of Central Excise duty. 8. Shri Aneesh Dewan, learned Authorized Representative for the Department, reiterates the findings of the impugned order and submits that the case laws and the Board Circular relied upon by the appellants are no longer valid with the introduction of new CENVAT Credit Rules, 2004; he relies upon Marigold Coatings Pvt. Ltd 2016 (337) ELT 515 (Guj.) and submits that the decision of the Tribunal in the case of Balmer Lawrie Co. Ltd 2000 (116) ELT 364 (Tribunal)was overruled by the Hon ble Gujarat High Court in the case of Vimal Enterprise 2006 (195) ELT 267 (Guj.) and that the issue of endorsed Bill of Entry was not a subject matter of dispute. 9. Learned Authorized Representative for the Department further submits that endorsed Bill of Entry is not a specified document in terms of Rule 9 of CENVAT Credit Rules, 2004; Clause (2) and Clause (7) of the Notification No.53/2003 dated 01.04.2003 were violated; M/s Hero Cycles Ltd cannot be said to be the job-worker of M/s Hero Exports as the procedure laid down under Notification No.214/86-CE dated 25.03.1986 was not followed; similarly, Condition No.6 of the Notification No.90/2006-Cus dated 01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y shall not be in relation to the relevant aspects which are specified in those provisions. However, the said clarification nowhere provides that the presence of name of the contractor in the invoice alongwith that of consignee would disentitle the manufacturer to avail credit on the basis of such invoice irrespective of the fact that goods were actually received and utilized by the manufacturer and the contractor had not availed any credit in respect of the duty paid on such goods. Therefore, merely because the invoice discloses the name of the contractor along with that of the consignee, but the documentary materials placed before the authority establish to the satisfaction of the adjudicating authority that the goods which described in the invoice were in fact received in the factory of the consignee/manufacturer and those goods were subjected to payment of duty as disclosed in the invoice and further that the goods were utilized or were to be utilized by the manufacturer, certainly the credit in relation to duty paid on such goods cannot be disallowed to such manufacturer. --- 31 . The contention of the department that there is no provision for endorsement of the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a supportive manufacturer. Therefore, we find that the objections of the Department are not valid. As long as the documents indicate the consignments of goods to the manufacturer, the said goods are received in the factory of the manufacturer, the said goods are used in the manufacture of final products cleared on payment of duty, CENVAT credit cannot be denied. We find that this is the spirit of Rule 9(2) of CENVAT Credit Rules, 2004. Under these circumstances, credit availed by the appellants cannot be held to be incorrect. 14. Coming to the availment of CENVAT credit of CVD and ACD availed by the appellants, Revenue avers that the same is in violation of the conditions of respective notifications and that the name of the appellant is not mentioned in the licenses as a supporting manufacturer. We find that mere non-mention of the appellant as the supporting manufacturer, cannot take away the substantial benefit of CENVAT credit, looking into the fact that the appellant s name is mentioned in the Bills of Entry as a supporting manufacturer. Moreover, as submitted by the learned Counsel for the appellants, there is no bar on the importer to send the goods for job-work. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
