C.C.E. & S.T. Delhi-Iii vs M/S. Polyblends India Pvt. Ltd

[Arising out of Order-in-Appeal No. DLI-EXCUS-003-AP-P-392-13-14 dated 02.08.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Gurgaon].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E. & S.T. Delhi-III .Appellants

Vs.

M/s. Polyblends India Pvt. Ltd. .Respondent

.

Appearance:

Ms. Ranjana Jha, DR for the Appellant

Shri B.L. Yadav, Consultant for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 26.06.2015

FINAL ORDER NO. 52081/2015-EX(SM)

Per Ashok Jindal:

The Revenue is in appeal against the impugned order where the Ld. Commissioner (A) after examining the records allowed the Cenvat Credit to the respondent.

2. The facts of the case are that M/s. Jewel Overseas Pvt. Ltd. (M/s. JOPL), the supplier of inputs to the appellant applied for Central Excise Registered Dealer on 12.08.2010 electronically through ACEC system and Central Excise Registration no. AAACCJ3422EED002 was issued on the same day. The supplier M/s. JOPL supplied goods to the respondent and issued Cenvitable invoices. Respondent availed Cenvat Credit on duty on the strength of these invoices issued by M/s. JOPL. Later on M/s. JOPL failed to comply with certain formalities as per CBEC manual and supplementary instructions 2005. The registration certificate was revoked on 21.09.2010. As the registration certificate was revoked therefore it was held against the respondent that they have not complied with the conditions of Rule 9(5) of the Cenvat Credit Rules 2004 as they have not verified the antecedents of the supplier of the goods who was not having registration certificate. In these set of facts the show cause notice was issued to the respondent to deny Cenvat Credit on the strength of the invoices issued by M/s. JOPL during the impugned period. The matter was adjudicated. Adjudicating authority denied the Cenvat Credit. Consequently, duty was demanded along with interest and penalty was also imposed. On appeal before the Ld. Commissioner (A) held that at the time of supply of goods M/s. JOPL was registered dealer. Therefore, respondent is entitled to take Cenvat Credit. Against the said order Revenue is before me.

3. The Ld. AR submits that the respondent has not complied with the provisions of the Rules 9(5) of Cenvat Credit Rules 2004 while availing the Cenvat Credit has not verified the antecedents of M/s. JOPL. Therefore, they are not entitled to take Cenvat Credit. The observation made by the Ld. Commissioner (A) will nullify the provisions of Rule 9(5) of the Cenvat Credit Rules 2004. Therefore, the said order is required to be set aside. In as much as respondent has not given valid evidence for availment of Cenvat Credit. She further submits that there is no doubt during the impugned period that the supplier of the goods M/s. JOPL was not having registration certificate. Therefore, they are not entitled to take Cenvat Credit. At this stage she further submits that the requirement of submitting documents have not been met and the registration has been declared invalid ab initio. It is not a simplicitor case of not having registration but of having applied for it and not met the conditions and therefore, it was declared invalid subsequently ab initio.

4. On the other hand, Ld. Consultant of the respondent submits that it is a fact on record of supplying goods by M/s. JOPL. They were registered with the department and having registration certificate and registration was also allowed to them dated 12.08.2010. Therefore, complied with the conditions of Rule 9(5) of the Cenvat Credit Rules 2004. He further relied on the decision in the case of Imagination Technologies India P. Ltd. Vs. CCE Pune-III-2011 (23) STR 661 (Tri-Mum) and in the case of Secure Meters Ltd. Vs. CCE Jaipur-2010 (18) STR 490 (Tri-Del).

5. Heard the parties. Considered the submission.

6. In this case the facts which are not in dispute are as follows:

M/s. JOPL applied for registration on 12.08.2010 and was allotted registration no. AAACCJ3422EED002 on the same day. It is also a fact on record that M/s. JOPL could not comply with the provisions and formalities and their registration was revoked on 21.09.2010. It is also a fact on record that during this period M/s. JOPL supplied goods to the respondent on the strength of Cenvitable invoices. It is also not in dispute that the respondent have received the goods against the invoices issued by M/s. JOPL. The only dispute in this matter is that as on 21.09.2010 the registration certificate of M/s. JOPL was revoked and declared invalid ab initio. Therefore, in that circumstances, during the intervening period, respondent are entitled to take Cenvat Credit on the strength of goods supplied on the strength of the invoices issued by M/s. JOPL or not and contravened the provisions of Rule 9(5) of the Cenvat Credit Rules 2004 or not.

7. I find that at the time of issuance of the invoices to the respondent M/s. JOPL was having registration certificate and registration number was allotted to them on 12.08.2010 which was revoked later on. Therefore, as at the time when the supplier of the goods had supplied the goods to the respondent was having valid registration. In these circumstances, respondent has complied with the conditions of Rule 9(5) of the Cenvat Credit Rules, 2004. In these circumstances, I hold that respondent has taken the Cenvat Credit correctly on the invoices issued by M/s. JOPL during the intervening period.

8. With these terms, I do not find any infirmity with the impugned order. Same is upheld. Appeal filed by the Revenue deserves no merits. Hence dismissed.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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E/60324/2013-EX(SM)