AI Drafter 
TaxTMI 
TaxTMI 
2018 (5) TMI 382
X X X X Extracts X X X X
X X X X Extracts X X X X
.... HR Sheets/strips in their factory but in the invoices issued by M/s Hero Cycles Ltd. description of goods is written as CRC sheets, therefore, the Revenue is of the view that as description of goods in the invoice not as per the purchase order. Accordingly, it is alleged that the appellant has procured only invoices and no goods have been received along with invoices. In these set of facts, the show cause notice was issued to deny cenvat credit for contravention of Rule 7(1)(a) of the CCR, 2004. The matter was adjudicated and the cenvat credit was denied. Consequently, the duty was demanded alongwith interest and penalty on all the appellants were imposed. Aggrieved from the said order, the appellants are before us. 3. The Ld. Counsel for the appellant appeared before us and submits that it is not in dispute that the appellant has received HRC Sheets/Strips in their factory. The only dispute is that in the invoices issued by supplier, the descriptions of the goods are written as CRC Sheets. It is the contention of the Ld. Counsel that in fact the adjudicating authority has not taken the correct description of the goods given in the invoice. In fact, the descriptions of the good....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntitled to take cenvat credit on the strength of invoices where the goods described as CR sheets instead of HR sheets or not? It is an admitted fact that the appellants have placed a purchase order for HR Sheets and physically received HR sheets in their factory which have been used by them in the manufacture of their final products. The only description mentioned in the invoice is CR Sheets instead HR sheets. As per Provisions of Rule 7(1)(a) where it has been clarified that the documents contains the details of duty or service taxable, description of the goods or assessable value, Central Excise or Service Tax registration number of the person issuing the invoice, name and address of the factory or warehouse or premises, the assessee is entitled to take cenvat credit. Although the description of the goods does not match with the actual receipt of the goods but the fact is not denied that these HR sheets have been received by the appellants in their factory. Therefore, the appellants are entitled to take cenvat credit on the goods received by them. It is not the allegation that the appellants had procured HR sheets clandestinely without cover of invoice, therefore, the cenvat cred....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve said discrepancy was noted only in respect of sheets of thickness 3.5 mm, 4.0 mm, 5.0 mm and 6.0 mm received from M/s Hero Cycles (CR Division) and M/s J.D Sons Steel Pvt. Ltd. The Commissioner has documented 5 such invoices in Paragraph 35.1 of his order. 10. In his statement dt. 07.04.2005, Sh. Sanjay Kumar Aggarwal, Depot Incharge of M/s Hero Cycles Ltd., stated that their company at Ludhiana was Cold Rolling Mill engaged in manufacture of CR Strips/Sheets and their inputs for manufacturing CR Sheets/Strips were Hot Rolled (HR) Coils/Strips, which were procured from SAIL TISCO, ESSAR etc. and they did not manufacture HR Sheets/ Strips; that they received only duty paid CR Strips/ Sheets at their Gurgaon depot on stock transfer basis. The goods supplied them as per invoices were CR Strips/Sheets/Coils only Similarly, Sh. Rajesh Goyal, Director of M/s J.D. Sons, in his statement dt. 08.04.2005 stated that they only supplied goods namely CR Sheets/Coils as mentioned in the invoices. He also stated that the variation was never protested by M/s Automax till date. 11. Further, Sh. Vinod Kapoor, AGM of the appellant, in statement dt. 24.12.2004 stated that they have always rec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the reason that the Depot In-charge of M/s Hero Cycle has categorically stated that they did not manufacture HR Sheets/Strips and all the goods manufactured at their Ludhiana Unit and received at Gurgaon depot on stock transfer basis and supplied by the M/s Auto Max were CR Sheets/Strips as mentioned in their invoices. M/s J.D. Sons Steel Pvt. Ltd. has also categorically stated that the goods supplied were of the description as mentioned in the invoices. 14.1 The appellants have contended that they had received HR sheets, which have been used in the manufacture of final products. They have relied on the Final Order No.420/2011-SM(BR) dt. 13.07.2011 in the case of M/s Omax Autos Ltd. (supra) claiming that it has same set of facts. I find that in the case of M/s Ornax Autos Ltd. (supra) relied upon by the appellant is distinguishable on the facts. In that case, there was no dispute that appellants had placed order for HR Sheets and physically received HR Sheets in their factory. In the present case, the facts are different in the following wasy: (i) the purchase orders have been placed for CR sheets. (ii) the MRR shows receipt of HR sheets. (iii both the suppliers have ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ers are involved in the entire modus operandi as brought out by the Ld. Commissioner in para 36.1, para 36.2, para 36.4 and para 36.4.1 of the adjudication order. The Commissioner has rightly given the relief in respect of 8 out of 15 invoices of M/s J D & Sons as they are for HR Coils/Sheets. Role of Shri Vinod Kumar, AGM (Purchase) and Shri N.K. Pachauri, Deputy Manager (Stores) in accepting invalid/improper cenvatable invoices is clear and their acts were done with an intent to enable M/s Automax to avail the cenvat credit, which was not admissible to them. 15. In view of the above, I find no Infirmity in the order of the Commissioner and the same is therefore upheld. 16. Appeals filed by the appellants are dismissed. Devender Singh Member (Technical) As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon'ble President to refer the matter to the third member to resolve the following issue :- POINTS OF DIFFERENCE (a) Whether in the facts and circumstances of the case, the Cenvat credit can be denied to the appellant for contravention of Rule 57AB of the Cenvat Central Excise Rules, 1944 and Ru....