M/S. Beer Bros vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 105 -106/CE /2012 dated 27/12/2012 passed by Commissioner of Central Excise (Appeals), Delhi I]

For approval and signature:

Honble Mr 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?

M/s. Beer Bros. Appellants

Shri Charanjit Singh

Vs.

Commissioner of Central Excise Respondent

New Delhi I

Appearance:

None for the Appellants

Shri R K Grover, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 01.09.2015

ORDER NO. FO/ 52734-52735/2015-Ex (SM)

Per Ashok Jindal :

The appellants are in appeals against the impugned order denying the cenvat credit consequently, demanding duty along with interest and imposing penalty on both the appellants.

2. Today the matter was listed for hearing. None appeared on behalf of the appellants nor is there any request for adjournment received. It has been observed from the records, that matter has been listed for hearing on 2.3.2015 and 18.5.2015 also and on both the occasions, none appeared on behalf of the appellants nor any request for adjournment has been received. In these circumstances, appeals are taken up for disposal on their own merits.

3. The facts of the case are that the internal audit took place in the factory of the appellants for the period 2003-2004 and 2005-2006 and as per the figures of balance sheet of purchase of raw material shown by the appellant for the year 2004-2005 as Rs.3,73,84,102/-. Therefore, on the basis of these figures, the Central Excise duty was calculated which works out to Rs.61,01,085/- whereas the appellant took cenvat credit in their cenvat credit account to the tune of Rs.71,25,042/-. Therefore, it was alleged that appellant has taken excess credit of Rs.10,23,957/-. In these set of facts, the show cause notice was issued to the appellants to deny excess cenvat credit availed by them to the tune of Rs.10,23,957/-, consequently, for demanding duty along with interest and for imposition of penalty. Both the lower authorities denied the cenvat credit to the appellants, consequently, confirming demand of duty along with interest and penalty was also imposed on both the appellants.

4. Perused the records and heard the learned AR.

5. In this case, the basis for arriving at a decision that appellants have taken excess cenvat credit is the balance sheet figures whereas as per the Rule 9 of Cenvat Credit Rules, 2004, cenvat credit is available on the basis of invoices issued by the input supplier. From the show cause notice as well as the impugned order, it is not coming out whether the audit team has verified the cenvat credit account corresponding to the invoices received by the appellants for inputs which is the prime document for availment of cenvat credit. Therefore, I hold that show cause notice is defective for want of evidence i.e. invoices and it is not coming out from the investigation whether the cenvat credit account has been verified to the corresponding invoices or not. Therefore, quantification of duty admissible on cenvat credit on the strength of balance sheet figures is incorrect. Therefore, the charge of availment of excess cenvat credit on the appellant is not sustainable. Consequently, cenvat credit availed by the appellant cannot be denied in the absence of any supportive evidence. In these circumstances, the cenvat credit availed by the appellant is correct. Consequently, duty along with interest, entire demand and penalties are not imposable. With these observations, impugned order is set aside. Appeals are allowed with consequential relief, if any.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

ss

2