Commissioner of Central Excise Vs. Kalpana Industries

Commissioner of Central Excise vs Kalpana Industries

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Dec 05, 2003

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Citation: sooperkanoon.com/33313
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: M T K.D.
Decided On: Dec 05, 2003
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Kalpana Industries

Legal References

Reported In: (2004)(175)ELT309Tri(Mum.)bai

Excerpt

.....of entry was in favour of m/s kalpana industries ltd., 653/43, somnath co-operative industrial society dabhel, daman. the said address was not the address of their head office. since the bill of entry was not in favour of the appellants, the two factories being different and independent central excise duty paying units, the credit was denied by the adjudicating authority on the ground that duty paying document is in the name of (sic) another factory, though belonging to the same manufacturer. in appeal, however, the respondents succeeded in obtaining a favourable decision from the commissioner of central excise (appeals), who held that - "the appellants have taken the ground that due to exigency of requirement the imported consignment was diverted to 168/151-158, dabhel, another factory of the appellants company and declaration to this effect was filed with customs authority mumbai, and the delivery was made at that address after giving a bold endorsement on bill of entry. it was only the customs house agent's mistake that the address of the company at 1653/143, was mentioned and there was the ownership of the goods was never passed to a third factory. they relied on 1998(103)elt-672, and 1998(104)elt-824." 2. revenue's appeal is directed against the impugned order claming that the credit was availed on invalid documents. it is claimed that the decision reported in 1998 (103)elt 672 and 1998(104) elt 894 relied upon by the commissioner (appeals) are not applicable in the case.similarly, board's circular no. 179/2/96, which permits grant of credit, where the documents is in the name of head office, is also not applicable in this case, because the document in the instant case has been obtained in the name of a different factory than the one which took credit.3. after examining the rival contentions, i find that the revenue appeal is without any merit. the bill of entry, in this case refers to import by kalpana industries ltd. somnath co-op. industrial society.....

Full Judgment

1. This is a revenue appeal against the impugned order passed by the Commissioner of Central Excise (Appeals). The respondents who are located at Dabhel Ind. Co-op. Society Dabhel took modvat credit of Rs. 1,21,592/- being CVD paid against Bill of Entry No. 5684 dated 15/11/1966. The said bill of entry was in favour of M/s Kalpana Industries Ltd., 653/43, Somnath Co-Operative Industrial Society Dabhel, Daman. The said address was not the address of their head office. Since the bill of entry was not in favour of the appellants, the two factories being different and independent Central Excise Duty paying units, the credit was denied by the adjudicating authority on the ground that duty paying document is in the name of (SIC) another factory, though belonging to the same manufacturer. In appeal, however, the respondents succeeded in obtaining a favourable decision from the Commissioner of Central Excise (Appeals), who held that - "The appellants have taken the ground that due to exigency of requirement the imported consignment was diverted to 168/151-158, Dabhel, another factory of the appellants company and declaration to this effect was filed with Customs Authority Mumbai, and the delivery was made at that address after giving a bold endorsement on Bill of Entry. It was only the Customs House Agent's mistake that the address of the company at 1653/143, was mentioned and there was the ownership of the goods was never passed to a third factory. They relied on 1998(103)ELT-672, and 1998(104)ELT-824." 2. Revenue's appeal is directed against the impugned order claming that the credit was availed on invalid documents. It is claimed that the decision reported in 1998 (103)ELT 672 and 1998(104) ELT 894 relied upon by the Commissioner (Appeals) are not applicable in the case.

Similarly, Board's Circular No. 179/2/96, which permits grant of credit, where the documents is in the name of Head Office, is also not applicable in this case, because the document in the instant case has been obtained in the name of a different factory than the one which took credit.

3. After examining the rival contentions, I find that the revenue appeal is without any merit. The Bill of Entry, in this case refers to import by Kalpana Industries Ltd. Somnath Co-Op. Industrial Society Dabhel, Daman, whereas the credit has been taken by the unit of M/s.

Kalpana Ind. Ltd. Dabhel Indl. Co-op. Society Daman.

4. It is admitted fact that the entire consignment in original packing is transferred and delivered to unit located at Dabhel Ind. Co-op Society. It is not in dispute that the material relating to the said Bill of Entry has been actually received in the unit at Dabhel Indl.

Co-Op. Society.

5. The issue, therefore, is only a question of deficiency in the duty paying documents. It is an admitted fact that the two units belong to the same manufacture. Board has also permitted taking of credit on the basis of documents where instead of the factory address the address of the Head Office is indicated. In this case, the inputs have been delivered to another factory, instead of the factory in whose name the import was made. Since, the duty paying nature of the inputs or their utilization in the manufacture of final goods has not been disputed nor is there any finding to suggest that, the duty paying documents in the name of the original importer have been surreptitiously endorsed in favour of some other user, the defect in the document being of a curable nature, credit can not be denied.

6. Accordingly, I do not find any merit in the appeal filed by the revenue and the same is hereby rejected.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise vs Kalpana Industries Same Subject Service Tax Same Judge M T K.D.