2024 (2) TMI 11

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....fications No.90/2006 dated 01.09.2006and No.53/2003 dated 01.04.2003; Revenue disputes the availment of CENVAT credit on the grounds that endorsed Bill of Entry is not a proper document for availment of CENVAT credit and Notifications issued for FMC and DFCE Scrips do not provide for transfer of credit; show-cause notices were issued for recovery of CENVAT credit and imposition of penalty; the original authority has confirmed the demands raised and the appellate authority upheld the same. Hence, these appeals. 2. Shri Sudhir Malhotra, learned Counsel for the appellants, submits that M/s Hero Exports imported e-bikes in CKD conditions and parts and sends the goods directly from the Port to M/s Hero Cycles Limited endorsing their name on the Bill of Entry; M/s Hero Cycles assembled the e-bikes and cleared on payment of duty; in terms of Rule 9 of CENVAT Credit Rules 2004, Bill of Entry is a valid document for availing CENVAT credit. He further submits that CBEC vide Circular No.179/13/96-CX dated 29.02.1996 clarified that: "Para 4: Where the imported goods are still in Customs dock area and the manufacturer/ importer decides to divert/ transfer the goods, a declaration by....

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....sed in the manufacture, credit cannot be denied. 5. Learned Counsel for the appellants further submits that all the show-cause notices are barred by limitation; there was no suppression of fact, mis-statement, fraud, collusion etc. with an intent to evade of duty and therefore, as held by the High Court and Hon'ble Supreme Court in the following cases, extended period cannot be invoked: • Naresh Kumar & Company Pvt. Ltd - 2022 (67) GSTL 324 (Cal.).. • Uniworth Textiles Ltd - 2013 (288) ELT 161 (SC). • Cosmic Dye Chemical - 1995 (75) ELT 721 (SC). 6. Learned Counsel submits further that penalty under Rule 26 cannot be imposed on companies as held by the Tribunal in the case of Woodmen Industries - 2004 (164) ELT 339 (T) [affirmed by Hon'ble Supreme Court - 2004 (170) ELT A307 (SC)]. 7. He further submits that the Department has been changing their stand; Revenue has issued another show-cause notice to the appellant on 08.05.2009 on the ground that the CENVAT credit availed by them should lapse on the issuance of Exemption Notification No.25/2008-CE dated 29.04.2008. It is pertinent to note that the Department did not dispute the availm....

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....lies with the type of document. We find thus, substantial compliance of the provisions relating to CENVAT credit have been complied with and only the procedural aspects thereof are to be looked into. We find that learned Counsel for the appellants has cited some cases (supra) wherein it was held that endorsed Bill of Entry is a valid document for availment of CENVAT credit. Learned Authorized Representative submits that the Board's Circular cited by the learned Counsel for the appellants and the case laws pertain to an era prior to 2004 when the new CENVAT Credit Rules have been notified. However, we find that CESTAT in the case of Bando India Pvt. Ltd (supra) considered the new CENVAT Credit Rules also; the Bench observed that: 23. Rule 7 of Cenvat Credit Rules, 2002 and sub-rule (9) of Cenvat Credit Rules, 2004, undoubtedly describes the various documents based on which the cenvat credit can be claimed. They include invoice issued by the importer as well as bill of entry. Sub-rule (1A) of Cenvat Credit Rules, 2002 and sub-rule (2) of Rule 9 of Cenvat Credit Rules, 2004, however, further clarifies that in case of any deficiency to be found in such documents in relation to....

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.... document become unlawful. 12. We find that the facts of the above case are comparable to the impugned one. The unmissable conclusion of different judgments is that endorsed Bill of Entry is a valid document. During the course of the argument, learned Counsel for the appellants displayed a few Bills of Entry in question which show that there is a declaration as follows on the back of the Bill of Entry: Declaration The CENVAT credit against this B/E shall be taken by the supporting manufacturer i.e. Hero Cycles Limited, New Cycle Division, Phase-VIII, Focal Point, Ludhiana. NAME OF FIRM HERO EXPORTS HERO NAGAR LUDHIANA TIN NO. 03761004555 CENTRAL EXCISE NUMBER AAAFH809HXM001 JURIDICIAL EXCISE AUTH. RANGE-III, NEW PREM NAGAR, LUDHIANA, DIV 1, CRB, CIVIL LINES COMMISSIONERATE LUDHIANA ASSESSEE CODE NO. AAAFH8092HXM001 PAN NO. AAAFH8092H 13. We also find that in addition to the above declaration on the back of the Bill of Entry, the name of M/s Hero Cycles is mentioned on the face of the Bill of Entry also as a supportive manufacturer. Therefore, we find that the objections of the Department are not valid. As long as the docum....