2005 (98) ECC 407 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(A)

Ms. Jyoti Balasundaram, Vice President and Shri V.K. Agrawal, Member (T)

Showpla (Delhi) Ltd.

Versus

Commissioner of Central Excise, Noida

Appeal No. E/1261/2004/NB-A

[Arising out of Order-in-Original No. 41/03 dated 31.10.02 passed by the Commissioner of Central Excise, Noida]

Final Order No. 1005/2004-NB-A, dt. 24.9.2004, Certified on 4.10.2004

Cenvat Credit

Duty paid on capital goods transferred from appellant's factory at Pune to their factory at Noida -- Cenvat credit disallowed on grounds that there was no proper duty paying document as specified in Rule 57AE of the Central Excise Rules and the credit had already been taken by them at Pune -- Range Superintendent-in-charge of Pune unit reported that appellant availed credit against two Bills of Entry only relates to only 2 machines out of 5 machines imported -- Bill of Entry was debited/reversed in the same month -- Thus, it was apparent that the appellant had not taken credit of amount in their Pune unit -- Appeal was allowed in respect of two Bills of Entry -- Rule 57AE(1)(h) of the Central Excise Rules -- Cenvat credit -- Capital goods were shifted from Pune unit to appellant's Noida unit under covers of their challans which containing a cross reference of the duty payment under corresponding Bills of Entry -- This invoice is to be issued in respect of capital goods of which credit has been taken and is cleared as such to some other unit -- Appeal relates to availment of cenvat credit of duty paid on capital goods allowed.

PRESENT :

Shri B.L. Narasimhan, Adv. for the appellant.

Shri S.C. Pushkarna, JDR for the respondent.

Per : Ms. Jyoti Balasundaram

The issue involved in this appeal relates to availment of Cenvat credit of duty paid on capital goods transferred from their factory at Pune to their factory at Noida after lapse of a few years.

2. On hearing both sides, we note that an identical issue for a different period in the case of the same assessee came up for consideration before the Tribunal in Appeal No. E/262/2003-B and vide Final Order No. 425/04-B dated 3.6.2004, the Tribunal upheld the appellants' claim for credit. The relevant findings are reproduced below:

"We have considered the submissions of both the sides. The facts which are not in dispute and that the impugned capital goods were imported under three Bill of Entry and the appropriate Additional Duty of Customs, besides basic Customs duty had been paid by the appellants and the said goods were received in their Pune Unit. The appellants' contention is that in respect of three machines covered by Bill of Entry No. 2912, they had not taken the Cenvat credit of duty at Pune Unit and similar was the case in respect of machines imported by them under Bill of Entry No. 1576. In respect of Bill of Entry No. 2615, they have taken credit at Pune unit and they had thus reversed the credit taken by them at Noida. Thus, as far as credit in respect of Bill of Entry No. 2615 is concerned, the appellants are not disputing the fact that credit was not admissible to them for Noida Unit and to this extent, the denial of Cenvat credit is upheld.

In respect of other capital goods covered under Bill of Entry Nos. 2912 and 1576 and removed from Pune Unit to Noida unit, the appellants have submitted that they had not taken the credit in the statutory records maintained in their Pune Unit. We observes here that the removal of the capital goods from Pune and their installation in their Noida unit has not been disputed by the Revenue. The Cenvat credit has been disallowed only on the grounds that there were no proper duty paying documents as specified in Rule 57AE of the Central Excise Rules and the credit had already been taken by them at Pune. The learned Advocate has contended that the capital goods were shifted from Pune unit to their Noida unit under covers of their challans which contain a cross reference of the duty payment under corresponding Bill of Entry. Such challans have been brought on records also. Rule 57AE(1)(h) prescribes that "invoice issued by a manufacturer of final products for clearance of inputs or capital goods as such" as one of the duty paying documents on the basis of which Cenvat credit can be taken. No doubt this invoice is to be issued in respect of capital goods of which credit has been taken and is cleared as such to some other unit. We find force in the submission of the learned Advocate that this challan is to be accepted as proper document for shifting of capital goods, the receipt of which at Noida unit has not been disputed. Regarding taking of credit at Pune unit in respect of machines covered under Bill of Entry Nos. 2912 and 1576, we observe that the Range Superintendent in charge of their Pune unit has reported in his letter dated April, 2002 that M/s. Showpla (Delhi) P. Ltd. availed the credit against Bill of Entry Nos. 2615 and 2192 only which was debited/reversed in the same month. Firstly he has not referred to Bill of Entry No. 1576 dated 5.6.98 and as such there is no material/evidence availing with the Revenue to show that the credit of additional customs duty paid in respect of Bill of Entry No. 1576 was taken by the appellants at Pune. Secondly, in respect of Bill of Entry No. 2912, the appellants had taken part credit of Rs. 81,81,352 which had been revesered by them in the month of July 1998 itself. According to the appellants, this credit relates to only 2 machines out of 5 machines imported by them under Bill of Entry No. 2912 and which were transferred in 1998 itself to Noida unit. Photocopy of RG23C (Part II) produced by the learned advocate clearly shows that credit taken and reversed on the basis of Bill of Entry No. 2912, was only Rs. 81,18,352 (sic) and not the credit of entire additional duty paid by them. Thus, it is apparent that the appellants had not taken the credit of the amount now in dispute in their Pune unit. Accordingly we allow the appeal in respect of appellants' eligibility to take credit at their Noida unit in respect of Bills of Entry Nos. 2912 and 1576. The appeal is disposed of in these terms."

3. Following the ratio of the above order, we hold that credit of Rs. 55,09,179 is admissible to the appellants, set aside the impugned order, confirming the above-mentioned amount as duty and imposing penalty of equal amount and allow the appeal.

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