TaxTMI 
TaxTMI 
2018 (8) TMI 1005
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....er 01.06.2006. The appellants have taken registration on 04.05.2007 belatedly claiming that they had a bonafide belief that Section 2(f)(iii) would not cover a situation where goods are already marketable and subject to payment of duty. The Department has served 6 SCNs to different service centre locations and all the SCNs were confirmed by Commissioner LTU vide orders 20-25 all dated 26.02.2009 confirming the duties as mentioned below and imposing penalty of Rs. 5,00,000/- on each of them. Appeal NO.s Service Centre Date of SCN Duty Demanded OIO No. Duty Confirmed E/574/2009 Bhiwandi 09.04.2008 Rs.1,53,34,772/- 20/2009- Commr. LTU Rs.36,67,278 /- E/576/2009 Jangalpur 23.04.2008 Rs.1,75,03,478/- 21/2009- Commr. LTU Rs.35,82,176 /- E/575/2009 Nagpur 23.04.2008 Rs.2,77,29,218/- 22/2009- Commr. LTU Rs.47,98,991 /- E/573/2009 Ramagund am 23.04.2008 Rs.5,89,43,852/- 23/2009- Commr. LTU Rs.1,03,99,71 2/- E/577/2009 Bhubanesh war 23.04.2008 Rs.58,03,486/- 24/2009- ....
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.... payment of duty, description of the goods, assessable value, name and address of factory/warehouse is mentioned in the documents. It is not the case of the Department that the goods were cleared from the Central Warehouses to any other places other than the service centres; therefore once the source of the goods is identified, the credit cannot be denied to the goods in question. 2.2. The learned counsel has also submitted that the audit of the appellants was conducted by the departmental officers on various dates from January 2007 to May 2007 and have issued audit notes; one of the objections was pertaining to the issue i.e. non-payment duty on goods clear from the service centres consequent to introduction of Notification No. 12/2006 dated 29.05.2006 wherein the Department concluded that since the unit has paid duty along with interest before the issue of SCN no further action is proposed as envisaged under Section 11(2B) of the Central Excise Act, 1944 whereas the audit note dated 11.09.2007 has concluded as above, the Department has proceeded with issuing SCNs in April 2008, there was nothing contumacious on the part of the appellants to be ineligible for the provisions of Se....
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....ds received in their premises as on 01.06.2006 whereas the appellants, having registered themselves on 0405.2007, are only eligible to avail credit of goods received by them on or after 04.05.2007. The utilization of credit by the appellants is in contravention of Central Excise Rules, 2002. The appellants contended that they have, at the Central Warehouse, availed credit of the CVD paid at the time of import of parts lying in stock as on 01.06.2006 and the same was accepted and allowed by the department. Similarly, when the service centres availed credit on the parts which were transferred from central warehouse and were lying in stock as on 01.06.2006. It is pertinent to see that the commissioner in the OIO has settled the issue and observed that (Para 25(iii) a) '' I find sufficient force in the argument of the assessee (the appellants). I have gone through the relevant provisions of the said Rules. I find that there is no mention anywhere in the Rule that the relevant date is date of registration. To that extent the argument of the assessee (the appellants) is acceptable''. 4.2 As far as this part is concerned it is clear that the Learned Commissioner has accepted the conten....
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....t for the periods mentioned at (i) and (ii) above the Learned Commissioner took the stand that no duty could be discharged before 01.06.2006 before 01.06.2006; Stock Transfer Invoice is not a valid document in terms of Rule 9 of the CENVAT Credit Rules and that proper correlation between credit taken and duty payment document was not available. However, the same authority has come to the conclusion that Stock Transfer Invoice is a valid document; filing of declaration under Rule 57G and that registration by dealers were only a procedural requirement. He has relied on Supreme Court's decision in the case of Dai Ichi Karkaria 1999(112) ELT 353(SC); Judgment of CESTAT in Nagammai Cotton Mills 2002(147) ELT 1245(T-Chennai) and decision of tribunal in Shivalik Agro Poly Products 2001(130) ELT 736(Tri-Delhi). It is pertinent to note that all the periods discussed by commissioner in the impugned order are prior to the obtaining of registration by the Appellants. We also find that Tribunal in the case of Rohit Surfactants Pvt. Ltd. 2018 (13) GSTL 175 (Tri. Allahabad) had held that credit if available prior to the registration needs to be allowed; question to be seen is as to whether the sa....