2008 (3) TMI 161 - AT - Central Excise

Appeal allowed for appellant, reversal of denial of Deemed Credit and penalties.

The appeal was allowed in favor of the appellant, setting aside the denial of Deemed Credit and penalties imposed. The court found that the appellant's ... Deemed Credit under Notification No. 58/97-C.E. - change of classification at buyer's end - misdeclaration in invoice - eligibility for Deemed Credit on waste and scrap - penalty under Section 11AC of the Central Excise Act, 1944 - penalty under Rule 209A of the Central Excise Rules, 1944Deemed Credit under Notification No. 58/97-C.E. - change of classification at buyer's end - misdeclaration in invoice - Whether the appellant can be denied Deemed Credit on the ground that the supplier misdeclared the nature of inputs in the invoice when no adjudication/appeal was prosecuted against the supplier - HELD THAT: - The show cause notice alleged that the manufacturer/supplier misdeclared the goods in the invoice and proposed denial of Deemed Credit and penalty for wilfully incorrect particulars. Notification No. 58/97-C.E. grants Deemed Credit on specified inputs but excludes inputs where the manufacturer has not declared the invoice price correctly. The adjudicating authority had dropped proceedings against the supplier, and the Revenue did not prosecute an appeal against the manufacturer/supplier. The Tribunal applied the principle that a change of classification by the buyer is not permissible and that denial of credit to a recipient cannot be sustained where the supplier's classification has not been finally adjudicated against the supplier; reliance was placed on the Supreme Court authority that prevents reclassification at the buyer's end and on Tribunal precedent holding credit permissible where no proceedings were initiated against the manufacturer. Because the Revenue had effectively accepted the adjudication outcome as against the supplier by not appealing, the allegation against the recipient was unsustainable and the denial of Deemed Credit could not be upheld. [Paras 4]Impugned order denying Deemed Credit set aside; appeal allowed and consequential relief granted.Final Conclusion: The Tribunal allowed the appeal, holding that classification cannot be altered at the buyer's end and that denial of Deemed Credit was unsustainable where the supplier's classification was not finally adjudicated or appealed against; the impugned order is set aside with consequential relief. Issues:Appeal against denial of Deemed Credit under Notification No. 58/97-C.E. dated 30-8-97, imposition of penalty on the supplier, eligibility of Deemed Credit for the appellant, change of goods classification at buyer's end, misdeclaration of goods in the invoice, applicability of Notification No. 49/97-C.E. dated 1-8-1997 on exempted goods, classification of inputs, sustainability of allegations against the recipient of inputs, acceptance of adjudication order by Revenue against the supplier, permissibility of classification of inputs at buyer's end.Analysis:The appellant filed an appeal against the denial of Deemed Credit during a specific period under Notification No. 58/97-C.E. The show cause notice proposed to deny the Deemed Credit based on the allegation that the appellant received different goods than declared in the invoice. The adjudicating authority initially dropped the proceedings, but the Revenue appealed to the Commissioner (Appeals), who ruled against the appellant, denying Deemed Credit and imposing penalties. The appellant argued that changing the classification of goods at the buyer's end is impermissible, citing relevant legal precedents.The Revenue reiterated its stance that the appellant received exempted goods and was not eligible for Deemed Credit on waste and scrap. Upon reviewing the records and arguments from both sides, the Member found that the show cause notice aimed to disallow Deemed Credit due to misdeclaration of invoice particulars by the supplier. The Notification in question allowed Deemed Credit based on the declared price by the manufacturer, with specific provisions for incorrect declarations. The Member noted that the Revenue did not challenge the manufacturer's classification of inputs, indicating acceptance of the adjudication order against the supplier.Relying on legal precedents and the Supreme Court's decision that classification changes at the buyer's end are impermissible, the Member concluded that the appellant's classification was not sustainable. As the Revenue did not appeal against the manufacturer of the inputs, the classification at the buyer's end was deemed impermissible. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief. The judgment highlighted the importance of correct declaration of goods and the impermissibility of changing classifications at the buyer's end, ultimately ruling in favor of the appellant based on legal principles and precedents.