2016 (7) TMI 156

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....the respondent's record, audit officers observed that original invoices on which Cenvat credit have been availed are not available, the same were asked from the respondent to produce, on which respondent submitted that original invoices were shifted to store in the Cotton Corporation of India Kalamboli which subsequently lost/destroyed in an accident of fire occurred on 2/11/2011. Respondent in their letter dated 18/1/2012 informed that records were kept in the godown but there was no mention of any fire incidence which had occurred on 2/11/2011, therefore department contended that respondent were not having original input invoices to be produced for verification and the Cenvat credit was availed in respect of non existing invoices. On ....

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....ed Cenvat credit, Ld. Commissioner(Appeals) without appreciating the vital fact i.e. non availability of the invoice, allowed the appeal of the respondent, which deserves to be set aside. He submits that for availing the Cenvat credit foremost requirement is the service tax paying invoices. There is no other document on which credit can be availed. For whatsoever reason if invoice is not available, Cenvat credit cannot be allowed.  He placed reliance on following judgments: (a) Protection Manufacturers Pvt Ltd. Vs. Commissioner of C. Ex. BBSR-I[2004(177) E.L.T. 612 (Tri. Kolkata)] (b) Commisisoner of Central Excise, Surat Vs. Survoday Blending(P) Ltd [2012(28) S.T.R. 104 (Tri. Ahmd.)] He submits that Ld. Commissioner has also consid....

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....cords, I find that respondent could not produce invoices either at the time of the audit and also subsequent to the audit. It is the stand of the respondent that they had in possession of invoices on the basis of which they had taken credit. Subsequently, these invoices were destroyed in fire. I find that Ld. Commissioner(Appeals) considering ground made by the respondent in the appeal before him, one of the ground was that all the invoices were recorded in the ledger, which is one of the evidence that respondent have received the invoice and credit taken on that basis. However it is not coming from the record of the Adjudicating authority, I am of the view that even though invoices have been destroyed in fire but if invoices have been reco....