Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2730

Whether credit admissible on basis of endorsed invoice if invoice contains name & address of Head office?


Case:-BIO-MED. HEALTH CARE PRODUCTS (P) LTD. VERSUS COMMR. OF C. EX., DELHI-IV
 
Citation:- 2015 (37) S.T.R. 381 (Tri. - Del.)

 
Brief facts:- The appellant are manufacturers of Medical Equipments viz. I.V. Cannula and three way stop cock chargeable to central excise duty under Tariff Heading Nos. 90183990 and 90183930 respectively. They have two units, first unit located at Plot No. 30, D.L.F. Ind. Area, Faridabad whereas the Unit-II was located at Plot No. A-14, D.L.F., Ind. Area, Faridabad. The dispute in this case is in respect of Unit-II.
The Central Excise records of the appellant’s unit-II were audited by the Audit officers of the Central Excise Department and in course of audit centre were irregularities detected which are as under :-
(a)    Though the appellant were using common Cenvat credit availed inputs in or in relation to the manufacture of dutiable final products as well as exempted final products and they were not maintaining separate accounts and inventories of the appellant company, they had failed to pay an amount equal to 5%/10% of the value of the goods in terms of the provisions of Rule 6(3) of the Cenvat Credit Rules, in respect of clearances of exempted final products. Short payment of duty of Rs. 95,419/- is on this basis.
(b)    The appellant have not paid duty amounting to Rs. 15,468/- on scrap arising out of manufacture of parts of medical instruments, which was not exempt from duty,
(c)    In respect of the clearances of final products, for captive consumption, there was short payment of duty, to the tune of Rs. 1,32,268/- as the duty has not been paid on the price at which the same are sold to the independent buyers,
(d)    Non-payment of service tax amounting to Rs. 3,75,891 on the commission paid to the foreign commission agents for procuring orders under reverse charge mechanism of Section 66A of the Finance Act, 1994, as the service received by the appellant from foreign commission agents is Business Auxiliary Services falling under Section 65(105)(zzb);
(e)    The appellant had availed capital goods Cenvat credit of Rs. 2,41,060/- in respect of the capital goods received in Unit-II while the invoices which were in the name of the Head Office and on which the address of the unit-I where the head office is located was mentioned. Though the appellant had endorsed the invoice in favour of Unit-II, the department was of the view that these invoices even though endorsed in favour of the Unit-II were not the valid documents for availment of capital goods Cenvat Credit by Unit-II.
The above disputed amounts of duty/Service Tax/Cenvat credit have been paid by the appellant even before the issue of show cause notice along with interest. In respect of the demands of Rs. 95,419/-, Rs. 15,468/- and Rs. 1,32,268/- and Rs. 2,41,060/- in addition, to the excise duty/Cenvat credit demand along with interest thereon an amount equal to 25% of the demand towards penalty, has also been paid.
The department, however, still issued the show cause notice for confirming the above demands along with interests and for imposition of penalty. The show cause notice was adjudicated by the Addl. Commissioner vide order-in-original dated 28-2-2012 by which the above mentioned five demands of central excise duty/Cenvat credit/service tax were confirmed along with interest and penalty of equal amount was imposed. On appeal being filed to the Commissioner (Appeals), the above order of the Addl. Commissioner was upheld. Against this order of the Commissioner (Appeals), this appeal has been filed.
 
Appellant’s contention:- Shri R.P. Jindal, Advocate, ld. Counsel for the appellant, pleaded that the entire amount of duty/Cenvat credit demand/service tax has been paid even before the issue of show cause notice along with interest, that except for Cenvat credit demand of Rs. 2,41,060/- in respect of the capital goods, he is not contesting the demands in respect of the remaining amounts, and he contesting only the penalty, that the alleged wrong availment of Cenvat credit/excise duty/non-payment of service tax had been detected in course of audit of the appellant’s records, during which, the appellant themselves had produced their various records, that in view of this, the appellant cannot be accused of suppressing or concealing any facts from the department, that even in the show cause notice that there is no specific allegation of misstatement, willful suppression of facts or deliberate contravention of any provisions of Central Excise Act, 1944 Finance Act, 1995 or of the rules made thereunder with intent to evade payment of central excise duty/service tax, that in view of these circumstances, the imposition of penalty on the appellant under Section 11AC of Central Excise Act, 1944/Section 76 of the Finance Act, 1994 is not called for, that as regards, the Cenvat credit demand of Rs. 2,41,060/- in respect of capital goods received in the appellant’s unit, the same has been denied on the ground that the invoices under which the capital goods have been received bear the address of the Head Office located at the Unit-I, that there is no dispute that the goods covered under the invoices had been received and that the invoices are endorsed in favour of the Unit-II, that in terms of the Board’s Circular No. 211/45/96-CX, dated 14-5-1996, the Cenvat credit should not be denied where under the invoices issued under Rule 52A to the Head Office, that the entire consignment covered under the invoice is received in the factory in original packed condition and the duplicate copy of the invoice is endorsed by their Head Office to the effect that consignment covered by the invoice is transferred to the manufacturing unit, that all the invoices under which the goods have been received in the Unit-II bears the endorsement, that the packed machines have been sent to Unit-II, and that in view of this denial of Cenvat credit of Rs. 2,41,060/- is not correct and imposition of penalty on this ground is not correct.
 
Respondent’s contention:- Shri M.S. Negi, ld. Departmental Representative defended the impugned order by reiterating the findings of the Commissioner (Appeals).

Reasoning of judgement:-Coming first to the issue of Cenvat credit of Rs. 2,41,060/ - in respect of capital goods received under the invoices issued to Head Office, there is no dispute that the entire goods covered under the invoices have been issued to Head Office have been received in Unit-II. There is also no dispute that each invoice bears an endorsement, that the packed machines were sent to Unit-II. Thus, the conditions prescribed for availment of Cenvat credit by a factory on the basis of the invoices issued to the Head Office as mentioned in the Board’s Circular No. 211/45/96/CX, dated 14-5-1996 are satisfied. The Cenvat credit demand of Rs. 2,41,060/- along with interest and penalty of equal amount imposed on the appellant is, therefore, not sustainable and is liable to be set aside.
As regards imposition of penalty on the appellant for non-payment of the amount of Rs. 95,419/- under Rule 6(3) of the Cenvat Credit Rules, 2004, non-payment of excise duty of Rs. 15,468/- on the scrap arising out of manufacture of parts of medical equipments, short payment of differential duty of Rs. 1,32,268/- in respect of the finished goods cleared for captive use and non-payment of service tax of Rs. 3,75,891/- on the commission paid by the Appellant to foreign commission agents for procuring export orders, these short payments had been detected in course of audit of the central excise records of the appellant in course of which, the appellant themselves had presented their records to the audit officer. In view of the fact that the appellant themselves had presented their records to the Audit Officers in course of which the above mentioned short-payment or non-payment of duty/service tax had been detected, it cannot be said that the above mentioned short-payment/non-payment of duty/service tax was deliberate. In fact the disputed amounts had been paid before the issue of SCN and therefore the same have to be treated as the payment of central excise duty/service tax made under Section 11A(2B) of the Central Excise Act, 1944/Section 73(3) of the Finance Act, 1994 and since the entire disputed amount of duty/service tax has been paid along with interest, even the show cause notice should not have been issued. In view of these circumstances, they hold that imposition of penalty on the appellant was not called for and is liable to be set aside.
In view of the above discussion, while the Cenvat credit demand of Rs. 2,41,060/- in respect of capital goods received in the unit is set aside along with penalty of equivalent amount, in respect of other demands of Rs. 95,419/-, Rs. 15,468/-, Rs. 1,32,268/- and Rs. 2,41,060/- while the duty/Cenvat credit/ Service Tax demands along with interest are upheld, imposition of penalty is set aside. The impugned order stands modified as above.
 
Decision:- Appeal allowed.
 
Comment:- The analogy of the case is that CENVAT credit availed by unit receiving capital goods on the basis of endorsed invoices is valid and proper if it has been evidenced that the capital goods were actually received in the unit and not in the premises of Head office. Further, when the duty demand proposed on account of audit objections has been paid along with interest before issuance of show cause notice, the question of levy of penalty does not arise at all.
 
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