9911796707
TMI Blog2025 (4) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... closing date. 2. The Revenue, however, issued Show Cause Notice No.V(15)17/Adjn/CE/VVF India Ltd/Kol-V/13/1093 dated 23rd January 2014 to the appellant for the alleged violation of the provision of Rule 11 of Central Excise Rules, 2002 and Rule 10 of Cenvat Credit Rules, 2004 for irregular availment of Cenvat Credit amounting to Rs.50,32,241/-. This credit availed by the appellant was on the basis of five numbers of invoices issued by M/s Henkel India Ltd. It was also pointed out that the goods were already under the possession of M/s VVF Limited. The notice also invoked the charge of suppression and willful misstatement on the part of the appellant as they did not intimate the stock of inputs as such or in process as also the capital goods so transferred along with the factory or business premises to the new ownership, which availed the said credit. 3. In the adjudication proceedings, the Ld. Commissioner found force in the department's contention and therefore confirmed the recovery of the alleged irregularly availed credit. He also imposed a penalty of equal amount. Aggrieved by the aforesaid order passed by the Adjudicating Authority the appellant is before us in appeal. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant purchased the impugned goods, were cleared against the commercial invoices. It is also noted on record that the appellant thereafter applied for central excise registration vide letter dated 11.01.2010. It was emphasized by the Ld. Advocate for the appellant that subsequent to the obtaining of the invoices, possession of plant and machinery and raw materials, having obtained the Central Excise registration they availed cenvat credit of the duty paid on the said purchase of capital goods and inputs, during the period January 2010 to April 2010, amounting to Rs.50,32,241/- on various dates. 6. In the course of audit, the Revenue pointed out that provisions of Rule 11 of Central Excise Rules, 2002 and Rule 10 of the Cenvat Credit Rules, 2004 were violated, in as much as Cenvat Credit was availed by the appellant on the goods that were already in their possession and prescribed procedure had not been followed. For appreciation of law, it may be necessary to reiterate the said Rule 11 of Central Excise Rules, 2002 and Rule 10 of the Cenvat Credit Rules, 2004. Thus: - Rule 11 of Central Excise Rules, 2002 " Goods to be removed on invoice. - (1) No excisable goods shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the goods are directly sent to any person on the direction of the registered dealer, the invoice shall also contain the details of the registered dealer as the buyer and the person as the consignee, and that person shall take CENVAT credit on the basis of the registered dealer's invoice : Provided also that if the goods imported under the cover of a bill of entry are sent directly to buyer's premises, the invoice issued by the importer shall mention that goods are sent directly from the place or port of import to the buyer's premises;] The invoice shall be prepared in triplicate in the (3) following manner, namely :- (i) the original copy being marked as ORIGINAL FOR BUYER; (ii) the duplicate copy being marked as DUPLICATE FOR TRANSPORTER; (iii) the triplicate copy being marked as TRIPLICATE FOR ASSESSEE. Only one copy of invoice book shall be in use at a time, (4) unless otherwise allowed by the Assistant Commissioner of Central Excise, or the Deputy Commissioner of Central Excise, as the case may be, in the special facts and circumstances of each case. *] * * * * * [(5) Before making use of the invoice book, the serial numbers (6) of the same shall be intimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory to a joint venture with the specific provision for transfer of liabilities of such factory, then, the manufacturer shall be allowed to transfer the CENVAT credit lying unutilized in his accounts to such transferred, sod merged, leased or amalgamated factory. (2) If a provider of output service shifts or transfers his business on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the business to a joint venture with the specific provision for transfer of liabilities of such business, then, the provider of output service shall be allowed to transfer the CENVAT Credit lying in his accounts to such transferred, sold, merged, leased or amalgamated business. (3) Transfer of the CENVAT credit under sub-rule(1) and (2) of Rule 10 of Cenvat Credit Rules, 2004 shall be allowed only if the stock of inputs as such or in process, or the capital goods is also transferred along with the factory or business premises to the new site or ownership and the inputs, or capital goods, on which credit has been availed of are duly account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the APA a nullity and non-enforceable. We prima facie feel that the department cannot raise any voice of discord over a mutually contracted premise. Thus if a case for upholding the demand is considered in terms of prescription of Rule 10 of Cenvat Credit Rules, 2004, then it is apparent that it would not call for the need for issuance of invoices which were required to be so issued and only the unutilized credit would be required to be transferred by M/s Henkel India Ltd., which however, was not the case. While on the other hand if the Revenue's case is that the credit was taken on the basis of invoices that were issued beyond the time period contemplated in the Asset Purchase Agreement, we feel that such an argument is self-defeating, as it is considered to be a case of Rule 10 of CCR, 2004 then no invoices were required to be issued and only unutilized credit would be required to be transferred by Henkel. This indeed is not the case. 9. It is an undisputed fact on record that there is no physical removal of any goods as the entire factory as a whole, lock stock and barrel, was purchased by the appellant and there is no shift of the premises involved. It is also not disputed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird party to question the same on grounds of delay and presumed invalidation thereof. It is between the two consenting parties to overlook any such variation of the terms of contract, to which both the sides have no qualms and reportedly agreed to. 13. Once the agreement has been implemented and the goods come into possession and title of the appellant, their duty payment not questioned, their consumption and utilization in manufacture of goods not doubted, all payment including duty payment made by the appellant, the department cannot hold that such invoices were irregular and inadmissible for availment of credit. For reasons foregoing, we do not find any justification in the department's stance of invoking extended period of limitation and charging the appellant with willful suppression more so when there are proper communications on record, intimating the department from time to time. We do not find even a weak tether of support to hold onto the charge of willful suppression or misstatement, as borne out from the records. The order passed by the lower authority is therefore contrary to the provisions of law and cannot therefore be sustained. 14. We set aside the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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