Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2882

Denial of cenvat credit on the inputs without sound allegations.

Case:- COMMISSIONER OF C. EX. & CUS., AURANGABAD VERSUSINDIA CONTAINERS LTD.
 
Citation:- 2015 (321) E.L.T. 473 (Tri. - Mumbai)
 
Brief facts:-This appeal is directed against the Order-in-Original No. 03/CEX/2000, dated 14-2-2000 vide which the adjudicating authority has set aside the demand of the duty of Rs. 27,91,555/-.
The respondent is absent despite notice. Since the issue is of 2001, they take up the appeal for disposal in the absence of any representation from the respondents.
The issue involved in this case is regarding denial of Modvat credit/Cenvat credit to the appellant on the inputs which were received by them and it was alleged that the said inputs could not have been used by the respondents for the manufacture of final products. The more specific allegations are that the respondents had procured inputs i.e. Tin Sheets/Tin Plates of which no thickness was mentioned on the invoices. It was further alleged that respondent could not have used tin plates of thickness of more than 0.24 mm. The adjudicating authority after considering the evidences produced before him came to the following conclusion -
“as regards to the amount mentioned in Annexure “B-3” of show cause notice for an amount of Rs. 27,91,555/-, the show cause notice itself do not specify the thickness therefore the allegations against the assessee are not sustainable and the remand to this extent cannot be confirmed”.
The adjudicating authority on the above findings set aside the demand raised on the respondent for the amount. The revenue is in appeal against such setting aside of the demand.
 
Appellant’s contention:- The ld. DR took them through the entire show cause notice and also through Annexure “B-3” to the said show cause notice. It is his contention that it was for the assessee to lead evidence as regards the thickness of the said tin plates for availing Modvat credit/Cenvat credit. It is his submission that the assessee never disputed that the invoices did not have thickness of the tin plates mentioned on them. He submits that the absence of non-mentioning of thickness on the invoices, it has to be presumed that the assessee has not used the tin plates received by him under invoices as mentioned in the said annexure.
 
Respondent’s contention:- None appeared on behalf of respondent.
 
Reasoning of judgment:- Considered the submissions made at length by the ld. DR and perused the records. It is seen from the records that the appellant has been receiving tin plates of various thickness for manufacturing of cans. The allegation in Annexure “B-3” to show cause notice is categorical, in as much that the credit is sought to be denied on the ground that the thickness of the tin plates is not mentioned. There were various allegations against the appellant and confirmation of the duty in respect of another allegations regarding credit availed on tin plates having thickness ranging between 0.24 mm to 0.45 mm and thinner. The adjudicating authority in the very same order-in-original had held that the appellant could not have used the tin plates which were having thickness ranging between 0.30 mm and thinner and 0.45 mm and thinner. Against the said confirmation of demand, the assessee came in appeal before the Tribunal in appeal No. E/1369 to 1372/2000. The Tribunal vide its Order No. C-I/551-554/WZB/2003, dated 28-2-2003, in respect of the allegations in Annexure “B-2” held as under” -
(b)Credit availed on tin plates having thickness ranging between 0.30 mm & thinner to 0.45 & thinner amounting to Rs. 23,87,575/-.
We have perused Annexure B.2 for this demand and accept the appellants’ contention that the description of inputs in this annexure can also cover inputs (tin sheets/tin plates) below 0.24 mm in thickness, particularly in the absence of any independent findings that these inputs were found to be of thickness in excess of 0.24 mm. We, therefore, set aside this demand as unsustainable”.
It can be seen from the above reproduced order of the Tribunal, that the credit of the duty, as plates having thickness of 0.30 mm and thinner 0.45 mm and thinner, were available to the assessee. In the current appeal by the Revenue before them, the case of the assessee is on a stronger footing. The allegation of the show cause notice itself does not enthuse confidence that the assessee could not have used the tin plates as mentioned in Annexure “B-3”. There is no allegation in the show cause notice that the respondent had not received the said tin plates as mentioned at Annexure”B-3”.
As such, they find that the very same order-in-original in respect of an identical allegation has been set aside by the Tribunal in the respondent’s own case. Respectfully, following the same, they find no merits in the appeal filed by the Revenue. The appeal is rejected.
 
Decision:- Appeal rejected
 
Comment:- The essence of the case is that cenvat credit cannot be denied unless there is no evidence of inputs having not been received or used in manufacture. At the time of issuance of show cause notice nothing is mentioned of thickness in show cause notice and credit is being denied solely on the ground that the assessee could not have used tin plates of thickness of more than 0.24 mm. The allegation of the show cause notice itself does not enthuse confidence that the assessee could not have used the tin plates. Therefore, the credit was allowed.

Prepared by:- Monika Tak 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com