TaxTMI 
TaxTMI 
2017 (6) TMI 47
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....s whether the Commissioner (Appeals) have rightly held that the respondent-assessee is entitled to Cenvat credit on purchase of the raw material from M/s M.K. Steels-proprietor Shri S.K. Gupta, of Kolkata. 3. The learned Commissioner (Appeals) have recorded the following findings: (i) The records placed before me proves the following facts:- Appellant No.1 have received all the disputed goods on invoices of trading firms under cover of Form 48 issued under the West Bengal Rules, 1995 and Form 31 of U.P. Trade Tax Department evidencing the physical entry of the goods after proper verification by Trade Tax Department, other documents such as bilty and GRs, Form-31 inter-alia shows quantity of the goods correlated with the....
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....ant No.1 without their being any duty paid mother invoices. Thus in the light of findings of the preceding paras it is proved beyond doubt that appellant No.1 have received the goods on the invoices of above referred trading firm. Thus the contention of the department that appellant No.1 have availed cenvat credit without receipt of goods (raw material) is not tenable. Further, as the appellant No.1 have discharged the Central Excise duty on the final product manufactured out of the alleged raw material and if the department is of the opinion that the alleged goods was not received by the appellant then it is to duty of the department to prove that any other alternative raw material was used in the final products. Department has fa....
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....rer as long as bona fide nature of the consignee's transaction is not doubted. Further, if the manufacturer-supplier has received payment from the buyer in respect of goods supplied including excise duty, action should be initiated against manufacturer supplier u/s 11D and 11DD." 4. The learned Counsel for the respondent further urges that the issue herein is no longer res-integra and the same have been decided in favour of the assessee, under similar facts and circumstances where similar inputs were received by the Juhi Alloys Ltd. from the same supplier, M/s M.K. Steels, Kolkata, this Tribunal had decide the issue in favour of the assessee, reported at 2013 (296) ELT 533 (Tri.-Del.). Against the said order of the Tribunal, Revenue ....
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.... input service, has been paid." 6. The Explanation to Rule 9(3) of the Rules of 2004 provides a deeming fiction where a manufacturer or producer of excisable goods who takes Cenvat credit on inputs, would be deemed to have taken reasonable steps, if he satisfies himself about the identity and address of the manufacturer or supplier or provider of input services, as the case may be, issuing the documents specified in sub-rule (1) on the basis of his personal knowledge or on the basis of a certificate given by a person with whom he is familiar or on the basis of a certificate issued to the manufacturer or the supplier by the Superintendent of Central Excise concerned. In other words, the Explanation to Rule 9(3) provides a deeming de....
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....ll reasonable diligence in its dealings with the first stage dealer. The view which the Tribunal has taken is consistent with the judgment of the Jharkhand High Court in Commissioner of C. Ex., East Singhbhum v. Tata Motors Ltd. - 2013 (294) E.L.T. 394 (Jhar.), where it was held as follows :- "... Once a buyer of inputs receives invoices of excisable items, unless factually it is established to the contrary, it will be presumed that when payments have been made in respect of those inputs on the basis of invoices, the buyer is entitled to assume that the excise duty has been/will be paid by the supplier on the excisable inputs. The buyer will be therefore entitled to claim Modvat credit on the said assumption. It would be m....
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....e buyers. Reliance is also placed on the statement of director of Sarla Ispat Pvt. Ltd. who have stated that neither they knew M/s M.K. Steels, nor they had ever sold M.S. Ingots to or through M/s M.K. Steels. The said statement of Director of Sarla Ispat Private Ltd. has also been accepted by Shri S.K. Gupta the Proprietor of M/s M.K. Steels and accordingly, it is urged that the Order-in-Appeal be set aside and the Order-in-Original be restored. 6. Having considered the rival contentions, I find that the learned Commissioner (Appeals) have recorded categorical findings that the respondent-assessee have received the inputs/raw materials along with the duty paying documents which are supported by pre-authenticated documents like road perm....