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CX – Merely for procedural lapse, substantial benefit of CENVAT credit cannot be denied – credit taken on the strength of first stage dealer invoice even though issued by importer is admissible: CESTAT

2019-TIOL-2001-CESTAT-AHM

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH, AHMEDABAD

Appeal No. E/12302/2018-SM

Arising out of Order-in-Appeal-CCESA-SRT-Appeals-PS-926-2017-18, Dated: 28.03.18
Passed by CCE Surat-i

Date of Hearing: 11.01.2019
Date of Decision: 11.01.2019

M/s SARVAIYA CHEMICALS INDUSTRIES PVT LTD

Vs

COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX
SURAT-I

Appellant Rep by: Shri S Apte, Adv.
Respondent Rep by: Shri L Patra, AR

CORAM: Ramesh Nair, Member (J)

CX – The assessee availed cenvat credit in respect of invoices issued by importer who is registered as a first stage dealer under Rule 9 of CER, 2002 by amending Notfn 8/2004-CE (NT) – The case of the department is that since the supplier importer was registered as a first stage dealer but not registered as importer for issuing invoice, the invoice issued by him is invalid document and cenvat credit is not admissible – Though the invoice was issued by importer not as a registered importer for issuing the invoice but he issued the invoice as a first stage dealer, the first stage dealer registration is also under Rule 9 and which was in force at the time of issuing the invoice, therefore, the invoice issued by an importer even in the capacity of first stage dealer, it cannot held invalid particularly for the reason that the first stage dealer invoice also contain all the information such as duty payment particulars and importers bill of entry, therefore, the duty which was passed on as a cenvat credit, payment thereof is not under dispute – Receipt of inputs and used thereof also not in dispute, therefore merely for procedural lapse, substantial benefit of cenvat credit cannot be denied – Therefore, the cenvat credit taken on the strength of first stage dealer invoice even though issued by importer is admissible to assessee hence, the impugned order is set aside: CESTAT

Appeal allowed

Case laws cited:

Urvi & Wedge Lamp Pvt. Ltd. 2018 (5) TMI 1118…Para 2

Steelco Gujarat Ltd. 2010 (255) ELT 518 (Guj.)…Para 2

South Eastern Coal Fields Ltd. – 2016-TIOL-372-CESTAT-DEL…Para 2

FINAL ORDER NO. A/10139/2019

Per: Ramesh Nair:

The brief facts of the case are that the appellant availed cenvat credit in respect of invoices issued by importer who is registered as a first stage dealer under Rule 9 of Central Excise Rules, 2002 by amending Notification No. 8/2004-CE (NT) dated 28.02.2004. An importer who issues an invoice on which cenvat credit can be taken should be registered under Rule 9 of Central Excise Rules, 2002. The case of the department is that since the supplier importer was registered as a first stage dealer but not registered as importer for issuing invoice, the invoice issued by him is invalid document and cenvat credit is not admissible.

2. Sh. Sanjay Apte, Ld. Counsel appearing on behalf of the appellant submits that even though the importer was not registered separately under Rule 9 but otherwise he was admittedly registered under Rule 9 as a first stage dealer, therefore, the invoice issued by importer in the capacity of first stage dealer is a valid document, if at all there is any lapse it is of procedural nature therefore, credit cannot be denied. He placed reliance on the following judgments.

– Urvi & Wedge Lamp Pvt. Ltd. 2018 (5) TMI 1118

– Steelco Gujarat Ltd. 2010 (255) ELT 518 (Guj.)

– South Eastern Coal Fields Ltd. 2016 (337) ELT 308 = 2016-TIOL-372-CESTAT-DEL

3. On the other hand, Sh. L. Patra, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that after the amendment in Rule 9, by the Notification 8/2004-CE (NT) , it is mandatory on the part of the importer to register himself as an importer for issuing the cenvatable invoice therefore after amendment the invoice issued as a first stage dealer is not a valid document.

4. I have carefully considered the submission made by both the sides and perused the records.

5. I find that though the invoice was issued by importer not as a registered importer for issuing the invoice but he issued the invoice as a first stage dealer, the first stage dealer registration is also under Rule 9 and which was in force at the time of issuing the invoice, therefore, the invoice issued by an importer even in the capacity of first stage dealer, it cannot held invalid particularly for the reason that the first stage dealer inovice also contain all the information such as duty payment particulars, importers bill of entry etc., therefore, the duty which was passed on as a cenvat credit, payment thereof is not under dispute. Receipt of inputs and used thereof also not in dispute, therefore merely for procedural lapse, substantial benefit of cenvat credit cannot be denied. Therefore, I am of the considered view that the cenvat credit taken on the strength of the first stage dealer invoice even though issued by importer is admissible to the appellant hence, the impugned order is set aside. Appeal is allowed.

(Dictated and Pronounced in the open court)

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