2017 (11) TMI 816 - AT - Central Excise

Tribunal sets aside Commissioner's decision, allows appeal on CENVAT credit issue.

The Tribunal allowed the appeal of the appellant, setting aside the Commissioner(Appeals) decision. The Tribunal found that no reversal of credit was ... CENVAT credit - duty paying documents - credit availed on the strength of photocopy of delivery challan (sales return) - Held that: - the goods were sent for testing as per the letter dt. 17/07/2010 issued by M/s. Unichem and after testing the goods were sent fact to the appellant and since the goods were sent for testing, no reversal was required as per the provisions of Rule 4(5)(a) and moreover the goods were received back within 180 days and therefore the contravention of provisions of Rule 11 of the CCR, 2002 does not arise - the CENVAT credit has been denied on mere procedural irregularities, which is not sustainable - appeal allowed - decided in favor of appellant. Issues:Appeal against rejection of CENVAT credit on the basis of photocopy of delivery challan.Analysis:The appeal was filed against the impugned order passed by the Commissioner(Appeals) rejecting the appellant's appeal and upholding the Order-in-Original. The appellants, manufacturers of glass and glassware, had availed CENVAT credit based on a photocopy of a delivery challan for capital goods sent for exhibition. The Department issued a show-cause notice demanding the amount availed as credit, along with interest and penalty under Rule 15(2) of CCR. The original authority confirmed the demand and imposed a penalty. The appellant contended that no reversal of credit was required as the goods were sent for testing and received back within 180 days, supported by a declaration from the testing party. The appellant cited judicial precedents to support their argument, emphasizing that credit cannot be denied on procedural irregularities. The Commissioner(Appeals) held that there was no proof of the goods being brought back, and the demand was beyond the limitation period.The appellant argued that even if reversal was required, credit cannot be denied once the goods are received back, citing relevant case laws. They also contended that the appellate authority exceeded the show-cause notice's scope and that the demand was time-barred. The Department reiterated the findings of the impugned order. The Tribunal, after considering both sides' submissions and the evidence, found that the goods were sent for testing and returned within 180 days, thus no reversal of credit was necessary under Rule 4(5)(a) of CCR. The Tribunal also observed that the denial of CENVAT credit was based on procedural irregularities and that the case laws cited by the appellant supported their position. Consequently, the Tribunal held that the impugned order was not sustainable in law and allowed the appeal of the appellant, setting aside the Commissioner(Appeals) decision.