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2016 SCC OnLine CESTAT 8591

In the Customs Excise and Service Tax Appellate Tribunal

West Zonal Bench at Mumbai
Court No. II
(BEFORE RAMESH NAIR, JUDICIAL MEMBER)

[Arising out of Order-in-Appeal No. BC/54/M-II/2012-13 dated 22-5-12 passed by

the Commissioner of Central Excise (Appeals), Mumbai III]
M/s. Pepsico India Holding P. Ltd. … Appellant;
Versus
Commissioner of Central Excise, Mumbai-II … Respondent.
Appeal No. E/1314/12
Decided on October 25, 2016 [Date of Hearing: 25/10/2016]
Appearance:
Shri. Akrit Jain, CA, for the Appellants
Shri. S.V. Nair, Asstt. Commissioner (A.R.), for the Respondent
ORDER NO.
The appellant availed credit on the invoices, wherein Serial Number of the invoices
either not printed or hand written. In one of the invoice credit was taken on Xerox
copy of the invoice. For this reason adjudicating authority has denied the Cenvat
credit. Being aggrieved by the Order-in-Original, the appellant filed appeal before the
Commissioner (Appeals) which was rejected, therefore appellant is before me.
2. Shri. Akrit Jain, Ld. C.A. appearing on behalf of the appellant submits that as
regard the printed serial number on the invoices, this tribunal in their own case held
that as per the Rule 11 of Cenvat Credit Rules, 2002 the only requirement is that
invoice should be serially numbered therefore allegation of not having printed serial
number is not correct. As regard the credit availed on Xerox copy, he submits that
though the credit was taken on Xerox copy but there is no dispute that input covered
in the said invoices was received in the factory and used in the production therefore
substantial compliance for taking credit was made except having original invoices. He
placed reliance on following judgments:
(a) Kamani Tubes Ltd. v. CCE, [2001 (134) ELT 665(T-LB)]
(b) CCE v. Satyen Dyes, [2001 (134) ELT 655 (T-LB)]
(c) CCE v. Steelco Gujarant Ltd., [2010 (255) ELT 518 (Guj)]
3. Shri. S.V. Nair, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the
Revenue reiterates the findings of the impugned order. He further submits that since
invoice do not bear printed serial number and credit was availed on photocopy, it is
against the provision of Cenvat credit rules accordingly credit should be denied. He
submits that the procedure and documents prescribed for the purpose of taking credit
is clear intention to avoid fraudulent availment of credit therefore appellant is not
entitle for the credit being taken on hand written serial numbered invoice and Xerox
copy of the invoice. He placed reliance on the Hon'ble H.P. High Court judgment in
case of Commr. of C. Ex. v. Chandra Laxmi Tempered Glass Co. Pvt Ltd., [2009 (234)
ELT 245 (HP)].
4. I have carefully considered the submissions made by both sides and perused the
record.
5. I find that the only allegation for denying the credit is that the appellant availed
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credit on the invoice which do not appear printed serial number whereas invoices were
numbered duly hand written. In one invoice credit was taken on Xerox copy. I find
that except these allegation there is no case of the Revenue that input covered under
said invoices were not received by the appellant and not used in the manufacture of
final product. The credit is allowed in respect of duty suffered on the input and if that
is not disputed credit cannot be denied. The allegation made by the Revenue is of
procedural nature and for such procedural lapse substantial benefit of Cenvat credit
cannot be denied as the duty payment under invoice, receipt of input and use thereof
has not been disputed. In the appellant's own case on the similar issue this Tribunal
vide Order No. A/05 & 06/12/SMB/C-IV dated 9-2-2012 held that as per rule 11 of
Cenvat Credit Rules, 2002 Cenvat credit can be availed on the strength of invoice
which shall be serially numbered, there is no requirement in the rule that invoice
should have printed serially numbered, accordingly Cenvat credit was allowed. As
regard the credit taken on Xerox copy of invoices, the issue is covered by judgment of
Hon'ble Gujarat High Court in case of Steelco Gujarant Ltd. (supra). In view of the
settled legal position, I am of the view that impugned order is not sustainable hence,
the same is set aside. Appeal is allowed.
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