AI Drafter 
TaxTMI 
TaxTMI 
2024 (8) TMI 1100
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....red to the department that above discrepancies have come to notice during the audit else the facts might not have come to knowledge of the department. Thus the appellant is alleged to have suppressed the facts from the department with intent to evade payment of Central Excise duty. Therefore, wrongly taken Cenvat credit of Rs.12,62,017- on input services was proposed to be recovered with proportionate interest and appropriate penalties vide Show Cause Notice No. 2152 dated 04.11.2019. The proposal has been confirmed vide Order-in-Original No. 01/2021-22 date 30.06.2021. The appeal against the said order is dismissed vide Order-in-Appeal No. 15/2023 dated 14.03.2023. Being aggrieved the appellant is before this Tribunal. 2. I have heard Shri Dhruv Tiwari and Ms. Aarushi Prabhakar, learned Advocates for the appellant and Shri Rohit Issar, learned Authorized Representative for the department. 3. Learned counsel for the appellant foremost has raised the jurisdiction issue as the authority issuing show cause notice is different from adjudicating authority. He has submitted that the appellant has correctly availed Cenvat credit of Rs.12,62,017/- in terms of Rule 9(1) of the Credit ....
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....of valid documents. With respect of the amount of Rs.1,34,261/- in respect of clearance made to Baynee Traders and Ashoka Services, it is mentioned that the appellant has already paid central excise duty. Thus, in terms of the above submissions and supporting evidence of payment of central excise duty, the demand of central excise duty of Rs.1,34,261 is submitted as unsustainable and is prayed to be set aside. 3.3 Finally submitting that substantive benefit of Cenvat credit cannot be denied merely on technical/procedural lapses and that the extended period of limitation is not invokable, penalty is not imposable and interest is not recoverable. This order is accordingly prayed to be set aside and appeal is prayed to be allowed. 4. While rebutting on the issue of jurisdiction on the ground of show cause notice being issued by Assistant Commissioner, CGST Audit, Jaipur but adjudicated by Deputy Commissioner, CGST Division, Jaipur but learned Departmental Representative has referred to Circular No. 985/09/2014-CX dated 22.09.2014 Para 5.3 thereof. While submitting on merits, learned Departmental Representative has mentioned that on verification of sample invoices submitted by th....
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....sentative has relied upon the department's circular dated 22.09.2014, it is observed that the same is with respect to the guidelines regarding structure, administrative set up and functions of the audit commissionerates. Para 5.3 thereof reads as follows: "5.3 Audit Commissionerate shall issue the show cause notice, wherever necessary, after the audit objections are confirmed in the MCMs. The show cause notice shall be answerable to and adjudicated by the Executive Commissioner or the subordinate officers of the Executive Commissionerate as per the adjudication limits prescribed the Board. Audit function will end with the issuance of show cause notice and further action including adjudication and follow-up shall be the responsibility of Executive Commissioner." 5.2 In view of this, it is clear that the aforesaid allegation challenging the jurisdiction is not sustainable. The adjudication authority despite being different from one which issued the said show cause notice is held to have the competent jurisdiction. 5.3 Now coming to the merits of the present case, it is observed that Commissioner (Appeals) has confirmed the demand based on following findings: (....
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....issued by - (i) a manufacturer or a service provider for clearance of- (l) inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer; (ll) inputs or capital goods as such; (ii) an importer; (iii) an importer from his depot or from the premises of the consignment agent of the said importer if the said depot or the premises, as the case may be, is registered in terms of the provisions of Central Excise Rules, 2002; (iv) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or ........... (2) No CENVAT credit under sub-rule (1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994, as the case may be, are contained in the said document: Provided that if the said document does not contain all the particulars but contains the details of duty or service tax payable, description of the goods or taxable service, a....
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.... invoice issued by the service provider. Further, Rule 9(2) provides that the Cenvat credit shall be allowed only when all the particulars are mentioned in the invoice issued by the service provider as per the Rules prescribed in this behalf. Thereafter, an exception is carved out, wherein if certain details, but not all, are provided in the invoice, credit shall be allowed, if the Assistant / Deputy Commissioner is satisfied that that the goods/services are received and accounted for in the books of accounts. 5.8 In the present case, apparently the invoices were issued in the name of other plants of the appellant instead of being in favour of appellant. But it is also an admitted fact that the invoices were found accounted in the books of appellant, NEI Jaipur. Revenue has produced no evidence to prove that the units whose name were mentioned on the invoices had accounted those invoices in their books of accounts. Revenue has also failed to produce any evidence to prove that the input services were received by other units of NEI that the Jaipur unit. The burden was of the Revenue/department. I draw my support from the decision in the Case of Radha Madhar Corporation Ltd. Vs. Co....