SHIVRAJ CABLE NETWORK Vs. COMMISSIONER OF CENTRAL EXCISE
LAWS(CE)-2015-1-165
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on January 30,2015

Shivraj Cable Network Appellant
VERSUS
COMMISSIONER OF CENTRAL EXCISE Respondents


Referred Judgements :-

MARMAGOA STEEL LTD VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

RAMESH NAIR,MEMBER (J) - (1.)THE appeal is directed against Order -in -Appeal No. US/484/RGD/2011 dated 22 -12 -2011 passed by the Commissioner of Central Excise (Appeals) - II, Mumbai, wherein the appeal of the appellant was rejected. The facts of the case are that the appellant, M/s. Shivraj Cable Network availed Cenvat credit on the bills of input service which is in the name of M/s. Hemraj Cable Network. The adjudicating authority vide order -in -original No. Raigad/DC(S. Tax) 29 -10 -2011 dated 29 -12 -2010 disallowed Cenvat credit amounting to Rs. 68,026/ - and also imposed penalties. The appellant preferred an appeal before the Commissioner (Appeals) who upheld the order of the adjudicating authority. Therefore, the appellant is before me.
Shri Vinay Sejpal, learned counsel for the appellant submits that on the bill of input service issued by M/s. Zee Turner Ltd., the name of the service -recipient was wrongly mentioned as Hemraj Cable Network instead of appellant's name i.e. Shivraj Cable Network. He submits that it is only a typographical/clerical error on the part of Zee Turner Ltd. However, the services were received by the appellant and payment against bills raised for such services were made by the appellant only. It is his submission that all the corroborative documents clearly establish that the bills of input services issued to the appellant only. He submits that as regard the error in the bills, the appellant written a letter dated 18 -2 -2011 to M/s. Zee -Turner Ltd. for rectification of the name on the bills, along with a copy to the distributor of M/s. Zee -Turner Ltd. The distributor of M/s. Zee -Turner Ltd. has certified that this mistake has occurred due to data feeding error at their end and the subject invoices were raised in the names of M/s. Hemraj Cable Network instead of M/s. Shivraj Cable Network (Customer No. CATV 2318 of M/s. Zee -Turner Ltd.). It was also certified that the services rendered by M/s. Zee -Turner Ltd. were directly to the appellant's address. He submits that there is an error in feeding the name of the appellant in the invoices of M/s. Zee -Turner Ltd., but the Customer Code i.e. 2318 was correctly mentioned. It is his submission that the payments of all the disputed invoices were made to M/s. Zee -Turner Ltd., by the appellant only. In this regard he draws my attention to the invoices, bank statement and the ledger copy. He also submits that the partner of the appellant -firm sworn in the affidavit wherein he stated that all the six invoices were issued by M/s. Zee -Turner Ltd. to the appellant only and he affirmed that the payments of the said bills were settled by the appellant -firm i.e. Shivraj Cable Network. He also submits that the Revenue could not establish that there is another firm in the name of Hemraj Cable Network who received the services billed in the said six invoices. He placed reliance on the following judgments:

"i. Simplex Mills Co. Pvt. Ltd. v. Commissioner of Central Excise, Mumbai -IV -, 2007 (81) RLT 331 (Bom.);

ii. Marmagoa Steel Ltd. v. Union of India -, 2005 (192) E.L.T. 82 (Bom.)."

(2.)HE also referred to the proviso to Rule 9(2) of Cenvat Credit Rules, 2004 and submit that even if the duty paying documents does not contain all the particulars, the Dy. Commissioner or Assistant Commissioner of Central Excise, as the case may be, it is satisfied that the goods or services covered by the said documents having received and accounted for in the books of account of the receiver, he may allow Cenvat credit. He submits that, only the name of the appellant, i.e., service -recipient was wrongly mentioned by an error by the service provider. However, on the basis of other corroborative document, when it is established that the services were received by the appellant, Cenvat credit should not have been denied in view of the provisions of Rule 9(2) of Cenvat Credit Rules, 2004.
(3.)ON the other hand, Shri A.B. Kulgod, learned Asstt. Commissioner (AR) appearing on behalf of Revenue, reiterates the findings of the impugned order.
I have carefully considered the submissions made by both the sides. The whole case is based on the fact that the six invoices on which the appellant claimed Cenvat credit are in the name of M/s. Hemraj Cable Network. However, the appellant claimed that the name was wrongly mentioned by the service -provider whereas, the invoices were meant for the appellant only. On a careful perusal of all the documents submitted by the appellant, I find that though the name in the invoices was mentioned as Hemraj Cable Network but the same stand corrected on the basis of letter by distributor of M/s. Zee -Turner Ltd., who certified that this mistake is due to feeding error in the computer. This clearly shows that the invoices were issued to M/s. Shivraj Cable Network only and not for anyone else. On a scrutiny of the records such as invoices, account ledger, bank statement, etc. it is clearly found that for all these six invoices the payment was made by the appellant i.e., M/s. Shivraj Cable Network to the service -provider M/s. Zee -Turner Ltd. through banking channel. It is also observed that the customer code i.e., 2318 which is provided to the appellant i.e. M/s. Shivraj Cable Network is correctly mentioned in all the documents such as invoices, and other documents. I have also considered the affidavit given by the partner of the appellant. From all these documents it becomes crystal clear that the name i.e., Hemraj Cable Network mentioned in the invoices is due to clerical error on the part of the service provider. All the documents also establish that the services were provided by the service -provider to the appellant only and payment for the services were made by the appellant to the service -provider. I have read the provisions of proviso to Rule 9(2) of the Cenvat Credit Rules, which is reproduced below:

"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, assessable value, Central Excise or Service tax Registration number of the person issuing the invoice, as the case may be, name and address of the factory or warehouse or premises of first or second stage dealers or provider of taxable service, and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods or services covered by the said document have been received and accounted for in the books of the account of the receiver, he may allow the Cenvat credit;"

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