TaxTMI 
TaxTMI 
2017 (12) TMI 1437
X X X X Extracts X X X X
X X X X Extracts X X X X
....urers/Suppliers including M/s. Fibro-Plast Corporation, Thane and M/s. Built Graphic Paper Products Ltd., Pune including Polyester Film, Poly Film, Coated Paper for its Haridwar Unit. That because of change with production schedule at Haridwar Unit the said input rendered surplus; and as the same was required at Malanpur Unit was transferred under the invoices issued by the Manufacturer-Supplier, endorsed by Haridwar Unit in favour of Malanpur Unit, with the remark on the back of each invoice "The entire consignment covered under this invoice being transferred in original packing to one sister unit Montage Enterprises Pvt. Ltd., Malanpur." The said input were used at Malanpur Unit. (5) That for the period in question the Appellant was subjected to show cause notice on 8/4/2015 proposing to recover Cenvat Credit amounting to Rs. 2,27,54,768/- (BED. Rs. 2,03,04,187/- + Ed. Cess 3,24,899/- + SHE.Cess Rs. 1,62,487/- + AED Rs. 19,63,195/-) under Section 11A(4) read with Section 11AB/AA of the Act of, 1944. On the ground that since the face documents issued by Haridwar Unit do not have duty payment particulars on them no Cenvat Credit can be availed on them and that no Cenvat Credit can....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, attached the supplier's invoices endorsed in favour of the Noticee, by putting the following remarks at the back of each invoice:" The entire consignment covered under this invoice being transferred in original packing to our sister unit M/s Montage Enterprises P. Ltd. Malanpur." I observe that gate passes Bill of Entry, AR-1 or any other document, as may be prescribed by the Central Board of Excise & Customs (CBEC), were accepted as valid documents under the erstwhile Rule 57G of the Central Excise Rules, 1944 were eligible documents for claiming Modvat credit. Two endorsements on the gate pass were also made permissible but thereafter vide Notification No.15/94, dated 30.3.1994 invoices in place of gate passes had been prescribed as valid documents along with AR-1 or Bill of Entry under erstwhile Rule 57G by amending this Rule, for claiming Modvat credit. However, in order to avoid any inconvenience, difficulty to the genuine end user of the goods, it was made clear through Notification No.16/94, dated 30.03.1994 that Modvat credit on the strength of gate passes issued before 1-4-1994 could be taken till or before 30.06.1994. Prior to 1-4-1994 and before the issuance of 15....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sions of Rule 3 of Cenvat credit Rules, 2004. The endorsed invoice is completely in favour of SIDKUL unit on which all the particulars required under Rule 11(2) of the Central Excise Rules, 2002 are relating to SIDKUL unit only. From the above Rules it is amply clear that in cases where the invoice is in the name another unit, credit cannot be taken on the basis of such documents by another consignee. In view of the above discussions, the procedure adopted by their sister unit, which is not their registered/Head office, is not in line with the Para 4 of the Board's Circular No.211/45/96 dated 14.05.1996 and the clarification contained in the Board's Circular No.179/13/96-CX dated 29.02.1996. 27. As per the provisions Section 11A(4) "where any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by the reason of (a) Fraud, or (b) Collusion, or (c) any willful mis-statement, or (d) suppression of facts;, or (e) contravention of any of the provisions this Act, or of the Rules made there under with intent to evade payment of duty, by any person chargeable with duty, the Central Excise Officer shall, within Five Years from....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and discussions, I find that the noticee has contravened the provisions of Rule 3 read with Rule 9(1) of the Cenvat Credit Rules, 2004 in as much as they have wrongly availed and utilized Cenvat Credit Rules, 2004 read with Section 11A(4) & (5) of the Central Excise Act, 1944. They have also rendered themselves liable to pay interest under Section 11AA of the Central Excise Act, 1944 read with Rule 14 of Cenvat Credit Rules, 2004. They have also rendered themselves liable for penal action under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 for suppression of facts of irregular availment from the department. (8) In an Appeal by the present Appellant the Tribunal by impugned order declined to cause any interference, observing: "6. After hearing the above submission and on perusal of the record, it appears that in the Cenvat Credit Rules 2004 there is no word "endorsement of the vouchers". The appellant has not produced any case law where area based exemption was entitled to claim the Cenvat Credit. In the instant case, raw material was purchased from Noida for Haridwar which was enjoying area based exemption. The goods have reache....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rding admissibility of Cenvat Credit to a user-manufacturer of Duty Paid on inputs, on the basis of the endorsed invoices, stands settled in favour of the Appellant by the Hon'ble High Courts of Allahabad & Gujarat, and Circulars issued by the C.B.E.C.? H.5 Whether Hon'ble CESTAT has committed grave illegality by denying the benefit of Cenvat Credit to the Appellant Malanpur Unit in the present case involving a procedural issue, regarding the procedure followed by the Appellant's above mentioned Appellant's Haridwar, Unit while transferring the impugned inputs to the Appellant Malanpur Unit, in the facts & circumstances of the present case, when there is no dispute with regard to the factual position regarding duty-paid character of the impugned inputs, receipt of the impugned inputs by the Appellant Malanpur Unit, and use of the impugned inputs by the Appellant Malanpur Unit in its dutiable final products? H.6 Whether the Learned CESTAT was justified in not giving any finding on the aspect of time bar as admittedly there is no case for invoking the extended time limit?" (10) Careful reading of the substantial questions of law proposed inviting indulgence bo....