By Puloma Dalal, Jayesh Gogri, Chartered Accountants
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CENVAT credit not available on the basis of true copy of bill of entry certified by the customs authorities.
Facts:
The
respondents availed CENVAT credit of Countervailing Duty (CVD) paid on
imported inputs on the basis of true copy of bill of entry. The
department contested that the CENVAT credit was not available on the
basis of the copy of bill of entry vide Rule 9 of the CENVAT Credit
Rules, 2004 and CENVAT credit was available only on original documents
relying on the decision of the Hon’ble Supreme Court and High Court. The
respondents argued that the original bill of entry was available at the
time of receiving the inputs. However, the same was misplaced after
availment of CENVAT credit and therefore the respondents got the copy of
the ex-bond bill of entry certified by the customs authority, relying
on the High Court and Tribunal precedents. Further, the erstwhile rules
allowed CENVAT credit on the basis of triplicate or duplicate bill of
entry. However, the present rules, used the phrase “bill of entry” and
therefore, in absence of any prefix and nature of bill of entry, the
same can be understood to include copy of the bill of entry and the
CENVAT credit should not be denied.
Held:
The
Tribunal observed and held that CENVAT credit was available based on
various documents mentioned under Rule 9 of the CENVAT Credit Rules,
2004. In the said rules, if the phrase “bill of entry” was interpreted
to include copy of bill of entry, then all other documents such as
invoice, challan, supplementary invoice, etc., should also include
copies thereof. However, at earlier occasions, the said interpretation
was not accepted by High Courts and Supreme Court.
Further, the
bill of entry was dated 10-02-2005 and the CENVAT credit was availed on
14-04-2006 and it was not obvious that the original bill of entry was
misplaced only after April, 2006. It was also observed that the
respondents had only produced a copy of challan and the original challan
also could not be produced.
Therefore, the Tribunal held that
the CENVAT credit was not available to the respondents, relying on the
Hon’ble Supreme Court’s decision and the Punjab and Haryana High Court’s
decisions in Union of India vs. Marmagoa Steel Ltd. 2008 (229) ELT 481
(SC) and S. K. Foils Ltd. vs. CCE, New Delhi 2009 (239) ELT 395
(P&H), affirmed by Hon’ble Supreme Court reported in 2010 (252) ELT
A100 (SC) respectively.
