Devcon Systems and Amp Projects vs. Commissioner of CGST & CX, Kolkata - (Customs, Excise and Service Tax Appellate Tribunal) (09 Nov 2020)

If the invoice issued by manufacturer contains details of Assessee as consignee, they are entitled to Cenvat credit even if the buyer is unregistered

MANU/CK/0062/2020

Excise

The facts of the case in brief are that, the Appellant is engaged in the manufacture of Pully, Belt Conveyor, parts and components of Conveyor System. Show cause notice was issued alleging irregular availment of Cenvat credit during the period 2013-14 against invoices issued by Roshanlal Bhagirathmal, a registered dealer. It is alleged in the show cause notice that, the Appellant-Assessee did not purchase the inputs from the said dealer. It is the case of the Department that, said inputs as claimed to have been received by the Appellant assessee in their factory premises on the strength of invoices issued by registered dealer are not the eligible inputs for the purpose of taking credit in terms of Cenvat Credit Rules, 2004 and Central Excise Rules, 2002, as the same were not purchased from the said dealer.

The Adjudicating Authority disallowed the Cenvat credit and confirmed the demand along with applicable interest as also imposed penalty as per the provisions of Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. On appeal, the lower appellate authority upheld the adjudication order and rejected the appeal. Hence, the present appeal before the Tribunal.

The issue involved in present appeal is no more res- integra in view of the clarification issued by the CBIC vide Circular No. 1003/10/2015-CX dated 5th May, 2015 issued for transit sale through dealer, wherein it was clarified that, where a un-registered dealer negotiates sale of an entire consignment from a manufacturer or a registered importer and orders direct transport of goods to the consignee, credit can be availed by the consignee on the basis of invoice issued by the manufacturer or the registered importer. As the dealer is not registered, there is no question of issuing any Cenvatable invoice by him. Such dealers as in the past can continue to be un- registered.

If the invoice issued by the manufacturer contains the details of the Appellant as consignee, they are entitled to Cenvat credit even if the buyer is unregistered. The facts of the present case are squarely covered by the decision of the Tribunal in Hydro Electro Machinery vs Commissioner of C. Ex., Mumbai. The impugned orders are set aside and the appeal filed by the Appellant is allowed with consequential benefit.

Tags : DEMAND CONFIRMATION LEGALITY