KOBAIN ELECTRONICS PVT. LIMITED Vs. COMMISSIONER OF CENTRAL EXCISE & S.T., VAPI
LAWS(CE)-2015-3-7
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on March 09,2015

Appellant
VERSUS
Respondents

JUDGEMENT

H.K. Thakur, Member (T) - (1.)THIS appeal has been filed by the appellant against OIA No. SKSS/226/VAPI/2010 dated 30.09.2010/Under this order, first appellate authority uphold the OIO No. 03/Assistant Commissioner/SLV -II/DEM/2010 -11 dated 28.5.2010 passed by the adjudicating authority denying CENVAT credit of Rs. 4,19,233/ - alongwith interest and imposition of penalty.
(2.)SHRI Anand Nainawati (Advocate) appearing on behalf of the appellant argued that out of total credit amount Rs. 3 Lakh pertains to CENVAT credit taken on capital goods and the remaining pertains to credit taken on the inputs. That the issue involved was taking credit of capital goods and inputs in appellant's Unit -III when the invoices were in the name of Unit No. I and II of the appellant. That in the original rounds of litigation it was discussed that for minor clerical mistakes cenvat credit can not be denied to the appellant. That the credit has been denied on the presumption that inputs and capital goods were never received in Unit No. III. It was his case that the entire credit is proposed to be denied on the ground that as per report of JRO, the capital goods/inputs were not received by the appellant. That copy of said report was never given to the appellant. It was also the case of the learned Advocate that neither the audit report nor the show cause notice dated 04.1.2008 raised an iota of evidence that the capital goods/inputs were not received by the appellant. That copies of RG -23 Part I & II of inputs and capital goods were made available alongwith accounts maintained for consumption of raw material were made available to the department. It was his case that credit was correctly availed by the appellant.
Shri J. Nagori (AR) appearing on behalf of the Revenue argued that it is evident from Para 4.1.4 of the Order -in -Appeal dated 30.09.2010 that the capital goods and inputs were not available in the said unit and credit has been correctly denied by the first appellate authority.

(3.)HEARD both sides and perused the case records. The issue involved is whether credit on certain capital goods and inputs is admissible to appellant's Unit -III for the documents where the name of unit No. I & II was mentioned. The original objection that documents are in the name of the other units of the appellant was condoned by the first appellate authority. But in the remand proceedings a case was made out that neither the capital goods nor the inputs are received in appellant's Unit -III, when it was not at all a fact taken either in the audit objection or in the show cause notice. A letter dated 02.2.2009 was mentioned in the proceedings to hold that the capital goods and inputs were not available in the factory when the same was closed and also when the credit was taken in 2003. A copy of such verification report was also not made available to the appellant. Appellant did produce copies of RG -23 Part -I & II of the credit taking registers to establish that capital goods and inputs were received in the factory of the appellant. The details of the raw material consumption were also made available by the appellant. It is not coming out of the discussion of the adjudicating authority as to why the records maintained by the appellant are not acceptable. The statutory CENVAT taking records are the only authentic documents to establish that capital goods and inputs were received by the appellant, when manipulation of records or diversion of inputs/capital goods are not alleged in the show cause notice. Under the above facts and circumstances appellant has brought on record the fact of receipt and utilisation of capital goods and inputs in the factory premises of the appellant. Minor procedural lapses can not be made the basis of denying the CENVAT credit when the name of other units of the appellant in the documents was also condoned. Extended period is also not invokable in this case.
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