Raheja Plastics vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Appeal No. YDB/87/MV/2011 dated 9.8.2011 passed by Commissioner of Central Excise (Appeals), Mumbai-I)

For approval and signature:

Honble Mr. Anil Choudhary, 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 :

CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

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

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

======================================================

Raheja Plastics Appellant Vs. Commissioner of Central Excise, Mumbai-V Respondent

Appearance: Shri J.F. Pereira, Head-IDT, for appellant Shri V.K. Agrawal, Additional Commissioner (AR), for respondent

CORAM: Honble Mr. Anil Choudhary, Member (Judicial)

Date of Hearing: 2.1.2015 Date of Decision: 2.1.2015

ORDER NO

The appellant has filed this appeal against order-in-appeal No. YDB/87/MV/2011 dated 9.8.2011.

2. The brief facts of the case are that the appellant is a registered manufacturer manufacturing plastic containers without caps and plug caps and plugs falling under Chapter Sub-heading 3923309 and 39235010 of the Central Excise Tariff Act. During the course of audit, it was observed that the appellant had availed cenvat credit on inputs to the tune of Rs.1,79,754.40 on the basis of two bills of entry dated 9.10.2007 and 19.12.2007 which are not in the name of the appellant, but the same were in the name of M/s. Pidilite Industries Ltd, Mumbai 400 059. It appeared to the Revenue authority that the appellant had contravened the provisions of Rules 9(1)(a) and 9(2) of the Cenvat Credit Rules, 2004 and as such had availed irregular credit and the same appeared to be recoverable under Rule 14 of the Cenvat Credit Rules read with Section 11A of the Central Excise Act. Accordingly, show cause notice dated 17.6.2010 was issued for the recovery of the said amount along with interest and further penalty was proposed under Section 11AC of the Central Excise Act and under Rule 15A of the Cenvat Credit Rules, 2004.

3. The appellant contested the show cause notice and stated that they were manufacturing the goods as a job worker on account of M/s. Pidilite Industries Ltd. who were providing inputs, capital goods and input services and availed the cenvat credit and pursuant to manufacture, cleared the goods from its factory on payment of duty. It was further stated that the imported consignment, being the disputed bills of entry, was received by the appellant in original packed condition under delivery memo Nos.1311/5.12.2007 and 7/29.2.2008 and the same were entered in the appellants factory records vide gate entry Nos. 4665/5.12.2007 and 7985/6.3.08. It was further stated that the inputs were used in the manufacture of dutiable final products. They have not availed cenvat credit in respect of the two bills of entry under dispute. It was further contended that the bill of entry is the specified document under clause (c) of Rule 9(1) of the Cenvat Credit Rules and which Rule nowhere states that credit cannot be taken in case of endorsement and/or the bill of entry should be only in the name of the party claiming the benefit. The appellant also relied on the decision of the Honble Bombay High Court in the case of Marmagoa Steel Ltd. vs. UOI reported in 2005 (192) ELT (Bom.) and the decision in the case of Gautam Wearing Units vs. CCE, Belapur reported in 2008 (230) ELT 147 (Tri.) and also the Tribunals decision in the case of Soorajmull Baijnath Ind. P. Ltd. vs. CCE, Gurgaon reported in 2009 (240) ELT 229 (Tri.).

4. The show cause notice was adjudicated and the proposed demand confirmed along with interest and equal amount of penalty has been imposed under Section 11AC of the Act and also a penalty of Rs.5,000/- under Rule 15A of the Cenvat Credit Rules, 2004 has been imposed. The appellant preferred appeal before the Commissioner (Appeals) who vide the impugned order was pleased to confirm the demand of cenvat credit and penalty under Section 11AC but dropped the penalty imposed under Rule 15A of the Cenvat Credit Rules. Being aggrieved, the appellant is before this Tribunal.

5. The learned consultant for the appellant reiterates the grounds taken before the authorities below and further relies on the ruling of this Tribunal in the case of Advanced Enzyme Technologies Ltd. vs. CCE, Thane-I reported in 2014-TIOL-438-CESTAT-MUM, wherein this Tribunal, after taking notice of the various rulings of the High Court and also Honble Supreme Court in the case of UOI vs. Marmagoa Steel Ltd. reported in 2008-TIOL-249-SC-CX, held that there is no dispute that the import consignments have not suffered CVD or that the said consignments have not been received at the appellants factory. Bill of entry is the specified document on the strength of which cenvat credit can be availed, and it is also equally valid document for availing credit. Accordingly, the appellant prays for allowing the appeal with consequential benefits.

6. The learned AR supports the impugned order.

7. Heard the rival contentions. I am satisfied that the bill of entry is also a valid document for availment of cenvat credit. I also find that the issue is squarely covered on all fours by the ruling of this Tribunal in the case of Advance Enzyme Technologies (supra). Thus the appeal is allowed and the impugned order set aside. The appellant will be entitled to consequential benefit in accordance with law.

(Dictated in Court)

(Anil Choudhary) Member (Judicial)

tvu 1 5