2017 (9) TMI 153

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....9;ble Umesh Chandra Tripathi, JJ. For the Appellant : Praveen Kumar ORDER The Commissioner of Customs, Central Excise and Service Tax Meerut has preferred this appeal against the order dated 08.03.2016 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The appeal was admitted on the following two substantial questions of law:- "(i) Whether the Learned Tribuna....

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....nefit of Cenvat Credit cannot be availed until and unless the documents specified therein are furnished. The relevant part of Rule 9 of the Rules reads as under:- 9. Documents and accounts.- (1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely :- (....

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....t was availed by the assessee on the basis of Advice of Transfer Debit (ATD) issued by the Central Telephone Store Department supported by Xerox of the original invoices. The Assessing Officer has not recorded any finding that the original invoices were ever supplied or produced to claim the Cenvat Credit. No material has been placed before us to indicate that the original invoices or the co....

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....ion 11-AC of the Central Excise Act, 1944. The imposition of penalty depends upon the outcome of the question No.1 on re-adjudication by the Assessing Officer. In view of above, the CESTAT has manifestly erred in setting aside the order of penalty which infact ought to have been left open for decision of the adjudicating authority while deciding question No.1 afresh. Accordingly, we allow....