Credit admissibM/s UMEDICA LABORATORIES PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, VAPIle on certified copy of bill of entry issued by bank if bill of entry is misplaced.

PJ/Case Law/2014-15/2147

Case:- M/s UMEDICA LABORATORIES PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE, VAPI

Citation:- 2014-TIOL-378-CESTAT-AHM

Brief facts:-This stay application and appeal has been filed by the appellant against the Order-in-Appeal No. SRP/100/DMN/2013-14 dated 12.6.2003. The issue involved in these proceedings is whether Cenvat credit taken by the appellant on the basis of Xerox copy of triplicate Bill of Entry is admissible or not.

Appellant’s contentions:-Shri Rahul Gajera, learned advocate appearing on behalf of the appellant argued that the Bill of Entry for which credit was taken was available with the appellant at the time of taking Cenvat credit. However, the same was misplaced and was not available during the course of audit conducted by the Revenue. As per Facility Notice No. 49/2010 dated 26.8.2010 issued by Chief Commissioner of Customs, Mumbai Zone-II, they applied for issue of necessary certificate from the concerned Bank and the same was produced before the lower authorities which has not been considered by them. He relied upon the judgement of this Tribunal in the case for C.C.E., VAPI vs. METHA HWA FUH PLASTICS PVT. LTD (2010 (285) E.L.T. 253 (Tri.-Ahmd.))and argued that thefact of receipt of inputs and its use in the manufacture of the finished products has not beendisputed by the Revenue and according to this judgment, Cenvat credit cannot be denied.

Respondent’s contentions:- Shri GP Thomas, A.R. appearing on behalf of Revenue argued that Cenvat credit cannot be availed on the basis of any certificate issued by the Bank and the same is not a proper document as per Rule 9 of the Cenvat Credit Rules, 2004.

Reasoning of judgment:- The issue involved in the present proceedings is whether Cenvat credit can be allowed on the basis of certificate issued by Bank where the original Bill of Entry is not available. As the issue involved in these proceedings lies in a narrow compass, therefore, allowing the stay application, the appeal itself is taken up for the disposal. The appellant has relied upon the Facility Notice No. 49/2010 issued by the Chief Commissioner of Customs, Mumbai Zone-II, vide F. No.S/I-22(02)/2008-CCO M-II dated 26.4.2010, in which a procedure is prescribed for taking Cenvat credit in case the EDI Bill of Entry is lost / misplaced / destroyed / mutilated. As per paragraph 3 of this Facility Notice, an importer can approach the authorised Bank with a request to obtain attested/certified copy of the Bill of Entry under which the duty was paid. As the appellant has followed the procedure and produced the relevant certificate before the lower authorities, there was no ground to deny the Cenvat credit to the appellant. It is further observed that as per the judgement of this Bench in the case of C.C.E., VAPI vs. MEHTA HWA FUH PLASTICS PVT. LTD.(supra) wherein it has been held that when the receipt of inputs and its final use in the manufacturing activity is not disputed, then the importer cannot be denied the Cenvat credit. Para 6 of this judgement is reproduced herein below:-

"6. Before I proceed further, it would be appropriate to consider the decisions relied upon by the ld. AR in his submissions. In the case of Marmagoa Steel Ltd., Hon'ble Supreme Court held that credit is not admissible since in that case the bill of entry was in the name of M/s. Essar Gujarat Ltd. and the Hon'ble Court allowed the credit where original copies of duplicate bills of entry were produced which had been endorsed in favour of the respondents therein and in respect of one bill of entry, the triplicate copy of bill of entry was not available and the respondent had produced a certificate from the Superintendent of Central Excise, in-charge of the Range in whose jurisdiction M/s. Essar Gujarat Ltd. was situated. Needless to say this cannot be compared with a situation where the verification is taken up after four and a half years of the event and the assessee claims misplacement of original documents but submits all supporting documents which clearly show that the goods have been received. Further, it has to be noted that bills of entry were in the name of the respondent only and a certificate from Deputy Commissioner. Customs, has been produced. As regards the decision in the case of S.K. Foils Ltd., credit was proposed to be availed on the basis of carbon copy of the challan and respondent had made a statement that original challans were not being issued by the supplier which was found contrary to the facts. Therefore this decision is also not applicable. As regards the decision in M/s. Survoday Blending Pvt. Ltd., the bill of entry was dated 10-2-2005 whereas the credit was taken on 14-4-2006. In that case the Tribunal took the view that if the copy of the original bill of entry was available with them at the time when credit was taken and there was no explanation why it was misplaced subsequently. The original bill of entry in that case was available in 2005 till 14-4-2006 for more than a year and thereafter it got misplaced. These peculiar facts were taken note of to disallow the credit. In this case Commissioner has not simply allowed the credit but has relied upon the decision of the Tribunal in the case of Steelco Gujarat Ltd. - 2009 (242) E.L.T. 229 (Tri.-Ahmd.) and distinguished the decision of the Larger Bench in the case of Avis Electronics Pvt. Ltd. - 2000 (117) E.LT. 571 (Tri.-LB) = (2002-TIOL-394-CESTAT-DEL-LB). Further, he has also relied upon the decision of Hon'ble High Court of Bombay in the case of Marmagoa Steel Ltd. - 2005 (192) ELT 82 (Bom.) = (2005- TIOL-239-HC-MUM-CX), Simplex Mills Co. Ltd. - 2007 (81) RLT 331 (Bom.) wherein it was held that credit is admissible on the basis of endorsed copies of invoice if inputs have been received and used. He has also relied upon the decision of Hon'ble High Court of Madhya Pradesh in the case of Kataria Wires Ltd. - 2009 (241) E.L.T. 31 (M.P.) wherein it was held that the credit is admissible on the basis of certified copy of invoices. In view of the detailed order passed by the ld. Commissioner which has taken note of several decisions while coming to the conclusion and which has also come to the conclusion that goods have been received and used in the manufacture and duty has been paid. I find that there is nothing legally or factually wrong with the impugned order. Accordingly, appeal filed by the Revenue has no merits and is rejected."

Decision:- The appeal is allowed.

Comment:- The crux of this case is that the credit cannot be denied when the fact that the inputs have been received and used in the manufacture of final products is not disputed. Moreover, Trade Notice also supports the fact that credit is also admissible on the basis of certified/attested copy of the bill of entry issued by the bank. Accordingly, the appeal was allowed.

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PJ/Case Law/2014-15/2147

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