TaxTMI 
TaxTMI 
2015 (9) TMI 724
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....ctory during the months of January 2002 to August 2002 and availed cenvat credit on different dates on the basis of 8 invoices issued by M/s.Volvo India Pvt. Ltd. 3. Alleging that the appellant had availed ineligible cenvat credit based on the documents issued by M/s.Volvo and addressed to M/s. Nav Bharat, Bangalore as per Rule 12 of the Cenvat Credit Rules, read with proviso to Section 11A(1) of the Central Excise Act, 1944, show cause notice was issued to the appellant proposing to disallow the ineligible credit and for imposition of penalty and interest. After due process of law, the Adjudicating Authority reversed the credit and gave a finding as follows: "In terms of the provisions of Rule 7(1)(a) of the CENVAT Credit Rules, 2002, CENVAT Credit can be taken by the manufacturer on the basis of an invoice issued by a manufacturer, an importer of a first/second stage dealer in terms of the provisions of the Central Excise Rules, 2002. In terms of Rule 11 of the Central Excise Rules, 2002, "no excisable goods shall be removed from a factory or warehouse except under an invoice......" As per sub-rule (2) of this Rule, "The invoice.... shall contain the registration number, name ....
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....seven hundred and eighty-four only) being, the credit erroneously availed under Rule 12 of the CENVAT Credit Rules, 2001/2002 read with proviso to Section 11A(1) of the Central Excise Act, 1944; (ii) I direct recovery of appropriate interest on the erroneous credit availed under Rule 12 of the CENVAT Credit Rules, 2001/2002 read with Section 11AB of the Central Excise Act, 1944; and (iii) I impose a penalty of Rs. 8,34,784/- (Rupees Eight Lakhs thirty-four thousand seven hundred and eighty-four only) under Section 11 AC of the Central Excise Act, 1944. (iv) I also impose a penalty of Rs. 10,000/- (Rupees ten thousand only) under sub-rules (1) and (2) of Rule 13 of the CENVAT Credit Rules, 2001/2002." 6. Aggrieved by the above-said order of the Adjudicating Authority, the assessee filed an appeal before the Commissioner (Appeals), who rejected the appeal holding as follows: "I have gone through the records of this case and also the oral and written submissions made by the appellant during the personal hearing. The crux of the matter is as narrated in para 3 of the Show Cause Notice: "The assessee had stated that originally M/s.Volvo India during October 1998 and F....
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....y the assessee was not applicable to the facts of the present case. The Tribunal, after relying upon Rule 16 and Rule 7(1) of the Cenvat Credit Rules, 2002, dismissed the appeal holding as follows: "4. After hearing both sides and on perusal of the records, I find that the main contention of the learned advocate is that appellate received duty paid goods in their factory for being remade, reconditioned under Rule 16 of the CCR 2002. appellant received duty paid goods in their factory for being remade, reconditioned under Rule 16 of the CCR, 2002. The relevant portion of Rule 16 of the said Rule reads as under :- Rule 16. Credit of duty on goods brought to the factory. - (1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being remade, refined, reconditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and shall be entitled to take Cenvat credit of the duty paid as if such goods are received as inputs under the Cenvat Credit Rules, 2002 and utilise this credit according to the said rules. 5. It is seen that Rule 16 permitted to receive duty paid goods at any factory ....
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....n by the learned advocate is not applicable in the present case. In the case of Hitesh Plastic Pvt. Ltd. (supra), the assessee cleared the final product to their customer who rejected the same and the goods were brought back to assessee's factory on their own central excise invoices. In this context, the Tribunal observed that the assessee's own invoice can be considered as duty paid document in terms of Rule 7 of CCR. 7. Regarding the issue of time-bar, the learned advocate drew the attention of the Bench to their letter dated 15-1-2002 addressed to the Superintendent of Central Excise. In the said letter, the appellant informed that their customer, M/s. Nav Bharat Corporation sent duty paid trailers to remake and convert for required model. It is also stated that as per Rule 16 of the said Rules, they proposed to bring the duty paid trailers along with the documentary evidence for the duty payment and carry out modifications for converting the trailers as per customer's requirement and return back on payment of duty for the full value of remade trailers. The said letter is silent that the appellant availed credit on the basis of invoices of M/s. Volvo India Pvt. Lt....