Rakesh Kumar ORDER
Shri Rakesh Kumar, Member (T)
1. The respondent are manufacturers of chemicals chargeable to Central Excise Duty under Chapter 28, 29 etc. They avail the facility of Cenvat credit of duty paid on inputs, and capital goods and service tax paid on input service as per the provisions of Cenvat Credit Rules, 2004. The period of dispute in this case is from January 2005 to March 2006. During this period the respondent availed service tax credit amounting to Rs. 3,55,602/- on services received from certain service provider on the basis of documents called debit note cum bills. The department was of the view that these documents are not the valid documents for availing Cenvat credit, as prescribed under Rule 9(1) of Cenvat Credit Rules, 2004. On this basis, after issue of show cause notice, the Assistant Commissioner vide order-in-original dated 17-2-09 confirmed the Cenvat credit demand of Rs. 3,55,602/- under Rule 14 of the Cenvat Credit Rules, 2004 read-with Section 11A of Central Excise Act, 1944 alongwith interest under Section 11AB. However, no penalty was imposed under Rule 15. On appeal to Commissioner (Appeals), the Commissioner (Appeals) vide impugned order-in-appeal dated 27-10-09 set aside the Assistant Commissioner's order on the basis of Rule 9(2) of the Cenvat Credit Rules according to which the Cenvat credit cannot be denied for minor lapses in the documents mentioned in Rule 9(1) of Cenvat Credit Rules and also taking into account the fact that the documents called debit notes cum bill contained all the requisite information like name and address of the input service provider, description of service, value of service, service tax paid etc. Against this order of the Commissioner (Appeals), the Revenue has come in appeal and respondent have filed Cross Objection.
2. Heard both the sides.
2.1 Mrs. Rimjhim Prasad, the learned Departmental Representative, assailed the impugned order by reiterating the ground of appeal in Revenue's appeal and pleaded that in this case the Cenvat credit had been taken on the basis that the debit notes which are not prescribed as valid documents for Cenvat credit under Rule 9(1) of Cenvat Credit Rules, that Larger Bench of the Tribunal in the case of CCE, New Delhi v. AVIS Electronics Pvt. Ltd. reported in MANU/CE/0041/2000 : 2000 (117) E.L.T. 571 (Tri. - LB.) has held that Cenvat credit is not available in absence of duplicate copy of the invoice or where the duplicate copy of the invoice has been lost in transit, the necessary permission for taking Cenvat credit on original copy has not been obtained from the Jurisdictional Assistant Commissioner, that the provisions of Rule 9(1) cannot be treated as mere procedure, that when Rule 9(1) of Cenvat Credit Rules prescribes certain documents on the basis of which Cenvat credit that can be taken, the Cenvat credit cannot be allowed on the basis of any other documents and that in view of this, the impugned order permitting Cenvat credit on the basis of documents called debit notes cum bills is not correct. Learned Departmental Representative also cited the judgments of Hon'ble Punjab & Haryana High Court in the case of S.K. Foils Ltd. v. CCE, New Delhi-III reported in MANU/PH/0129/2009 : 2009 (239) E.L.T. 395 (P & H) and the judgment of Hon'ble Madhya Pradesh High Court in the case of Executive Engineer (Civil), MPEB v. Asstt. Commr., C. Ex., Ujjain reported in MANU/MP/1138/2007 : 2008 (224) E.L.T. 219 (MP.), in support of her plea.
2.2 Shri Sunil G. Khandelwal, C.A., the learned counsel for the respondent, pleaded that in this case the service provider for the services provided by them to the respondent issued documents called "debit notes cum bills," that these documents are nothing but bills or invoices, that the original Adjudicating Authority in the order-i........