Hindustan Petroleum Coprn. Ltd vs Commissioner Of Central Excise, Mumbai ...

(Arising out Order-in-Appeal No. YDB/671/M-II/2010 dated 11.10.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai II)

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial)

1. Whether Press Reporters may be allowed to see No 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 No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

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

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

Hindustan Petroleum Coprn. Ltd. Appellant

Vs.

Commissioner of Central Excise, Mumbai II Respondent

Appearance:

Ms. Padmavati Patil, Advocate for the appellant Shri N.N. Prabhudesai, Supdt. (AR) for the respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial)

Date of hearing : 18.03.2015 Date of decision : 18.03.2015

O R D E R No:..

This appeal is directed against Order-in-Appeal no. YDB/671/M-II/2010 dated 11.10.2010.

2. Heard both sides and perused the record.

3. On perusal of the record, it transpires that the issue involved in this case is regarding whether the appellant has correctly availed Cenvat credit amounting totally of `3,16,222/- during the period April 2006 to October 2006 on the duty paying documents which were in the opinion of the revenue are extra copies of the invoice. The Adjudicating Authority as well as the first appellate authority held the appellant could not have availed Cenvat credit on the extra copies of the invoice.

4. Ld. counsel would take me through the show-cause notice and findings recorded by the first appellate authority. It is the submission that the first appellate authority has not considered the factual matrix of the invoices of which Cenvat credit was availed i.e. they were duplicate for transport and not extra copies. She would produce the duty paying document on which credit was availed; for perusal of the bench.

5. Ld. Departmental Representative, on the other hand, would submit that the Adjudicating Authority has clearly recorded that the assessee had not produced duplicate copy for perusal at the time of adjudication; and what was produced at the time was the copy which was not produced before the Adjudicating Authority. He would submit that the Cenvat credit can be availed only on duplicate copy for the transporter and not the extra copy of the invoice. He would rely upon Tata Motors Ltd. 2009 (244) ELT 315, Ispat Profiles India Ltd. 2009 (240) ELT 260 and Century Rayon 2014 (309) ELT 524 to submit that credit can be availed only on documents statutorily prescribed.

6. On considering of the submission made by both sides, I find the issue has to be decided on factual matrix. On perusal the invoice of which Cenvat credit was availed by the assessee; I find the Cenvat credit was taken by appellant for delivery of propane in bulk supplied by Indian Oil Petromax P. Ltd. There is no dispute that the goods were received by the appellant in the refinery. On perusal of the said invoices of which the Cenvat credit was sought to be denied, I find in the said invoices clearly at the right hand corner indicate that they are duplicate for transporter. I also find that CISF (HPCL) at appellants refinery has specifically stamped as material received under the invoice have been brought in to the factory premises. The reliance placed by the department as well as both lower authorities on the printing (extra copy) at the right hand lower portion of the invoice is incorrect inasmuch, as this invoice did not indicate that they are extra copies, on the top right hand side of the document.

7. I also verified the invoices issued by Balaji Amines Ltd., on which Cenvat credit was availed. I find that the said invoices which has been produced before me indicates that the said tax invoice is an extra copy of which, as per statutory provision credit cannot be allowed. Accordingly, I hold that the Cenvat credit availed on the extra copy invoice of Balaji Amines Ltd. is liable to be denied and I do so. The appellant is required to reverse the amount of Cenvat credit involved in the case of Balaji Amines Ltd. along with interest.

8. I find that the Adjudicating Authority has imposed penalties on the appellant under the provisions of Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. In my view, since the major portion of Cenvat credit on Indian Oil Petromax P. Ltd is allowed, and there being no intention to evade any duty, I set aside the penalties imposed on the appellant.

9. The appeal is disposed of as indicated hereinabove.

(Pronounced in Court)

(M.V. Ravindran) Member (Judicial)

//SR

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