Commissioner Of Central Excise & S.T., ... vs M/S. Polycab Cables Pvt. Limited

(Arising out of OIA-KKS/242/DAMAN/2008 dated 23.05.2008 Passed by Commissioner (Appeals) Central Excise & Customs, Daman)

Commissioner of Central Excise & S.T., Daman : Appellant (s)

vs.

M/s. Polycab Cables Pvt. Limited : Respondent (s)

Represented by :

For Respondent : None For Revenue : Shri Gobind Jha, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial)

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

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

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

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial)

Date of Hearing / Decision : 09.01.2015

ORDER No. A/10039 / 2015 Dated 09.01.2015

Per : Mr. P.K. Das;

Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals), whereby the adjudication order was set-aside.

2. None appears on behalf of the Respondent. It is seen from the record that Learned Advocate on behalf of the Respondent submitted a letter requesting adjournment. I find that the matter was adjourned on earlier occasions and nobody turned-up on behalf of the respondents. In view of that, I do not find any reason for adjournment of the matter.

3. After hearing the learned Authorised Representative for the Revenue and on perusal of the records, it is seen that the Respondent was engaged in the manufacture of Telephone Cables falling under Chapter 85 of the schedule of Central Excise Tariff Act, 1985. The adjudicating authority denied CENVAT credit of Rs. 5,82,375/- alongwith interest and imposed of penalty. It is seen from the adjudication order that M/s. J.J. Polyplast Limited, Daman was a registered dealer with the Central Excise department and surrendered their registration certificated on 01.6.2005, who, imported the goods under bill of entry No. 888064 dated 09.6.2005. M/s. J.J. Polyplast, Bhiwadi, who was registered as dealer, availed CENVAT credit on the strength of the said bill of entry. The respondent received the goods LLDPE Granules from M/s. J.J. Polyplast, Bhiwadi and availed CENVAT credit on the basis of invoices issued by M/s. J.J. Polyplast, Bhiwadi. The Commissioner (Appeals) set-aside the adjudication order.

4. For the proper appreciation of the case, the relevant portion of the findings of the Commissioner (Appeals) is reproduced below:-

3. I have heard the appellant and have examined the matter. There is considerable force in the plea of the appellant. There is no allegation that the goods in question are non duty paid or are not covered under the Bill of Entry No. 888064 dated 09.6.2005 or that the goods of this Bill of Entry were not delivered in the registered premises of M/s. J.J. Polyplast Limited located in Mumbai, the supplier of goods. There is the documents come from M/s. J.J. Polyplast, Mumbai. The only allegation is that the goods in question were imported by M/s. J.J. Polyplast, Daman on 09.6.2005, after surrender of registration of dealership on 01.6.2005 and therefore, M/s. J.J. Polyplast, Mumbai a registered dealer was not eligible to take credit on the basis of Bill of Entry in the name of M/s. J.J. Polyplast Limited, Daman. The appellant say that M/s. J.J. Polyplast Limited Daman had ordered importation of goods before surrender of their dealer registration on 01.6.2005 and that is why, they had arranged delivery of the goods imported under the aforesaid Bill of Entry to another registered dealer of their own company M/s. J.J. Polyplast, located in Mumbai. There is nothing to doubt these submission of the appellant or suspect the bonafides of M/s. J.J. Polyplast Limited Daman or Mumbai. There are catena of judgments of the Courts and Tribunal that for minor procedural infractions of rectifiable nature, substantive benefits should not be denied. Moreover, the document prescribed under Rule 9(c) of the Cenvat Credit Rules,, 2004, for availing CENVAT Credit is a bill of entry and not a Bill of Entry in the name of the registered person. Duty paid nature of goods and their delivery in the premises of M/s. J.J. Polyplast Limited, Mumbai being not in doubt, M/s. J.J. Polyplast Limited, Mumbai a registered dealer has rightly availed the credit on the goods in their records and has rightly passed on the credit to the appellant by issue of the 7 invoices in question.

5. The main grievance of the Revenue is that the Bill of Entry was in the name of M/s. J.J. Polyplast, Daman who had surrendered the registration on 01.6.2005 and they have not issued the invoices. On perusal of the findings of the Commissioner (Appeals) as mentioned above, I find that there is no dispute that the Respondent availed CENVAT credit on the basis of the invoices issued by M/s. J.J. Polyplast, Bhiwandi a sister unit of M/s. J.J. Polyplast, Daman who was a registered during the material time. The Commissioner (Appeals) has clearly recorded that there is no dispute as regards the receipt and utilisation of the inputs in the final product. It is also seen that the Respondent has availed credit on the basis of proper Central Excise invoices and therefore, there is no reason to deny the CENVAT credit to the Respondent.

6. In view of the above discussions, I do not find any reason to interfere with the order of Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. Cross Objection filed by the Respondent is disposed of.

(Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) ..KL

4