JUDGMENT

K.S. Jhaveri, J. - By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby Tribunal has allowed the appeal of the assessee.

2. This court while admitting the appeal on 18-4-2016 framed following substantial question of law :-

"Whether Central Cenvat Credit can be allowed on the basis of a document which does not carry required details as are provided under Rule 9(1) of Cenvat Credit Rules, 2004."

3. The facts of the case are that M/s. Bharti Hexacom Ltd. K-21, Sunny House, Malviya Marg, C-Scheme, Jaipur (Raj.) (hereinafter referred to as "the respondent" also) holder of Service Tax Registration No.AAACH1766PST001 are engaged in providing taxable services under the category of Telecommunication Services.

3.1 During the course of audit of the records of the respondent, it was noticed that the respondent has availed and utilized Cenvat credit amounting to Rs. 30,83,728/-(including Education Cess) on the strength of Debit Notes issued by M/s. GAIL (I) Ltd., Jaipur on 19-7-2006, 16-10-2006 and 15-2-2007. Since debit note is not a specified document for taking Cenvat Credit Rules, 2004, the Cenvat credit so availed by the respondent and subsequently utilized for payment of taxes which appeared to be irregular under provisions of law. Such irregular availment and utilization of Cenvat credit on the strength of improper document (Debit notes), the respondent appeared to have contravened the provisions of Rule 9(1) of the Cenvat Credit Rules, 2004 and Section 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994 and therefore, they appeared liable for penalty under Rule 15(4) of the Cenvat Credit Rules, 2004 read with Sections 76 & 78 of the Act.

4. Counsel for the appellant contended that the tribunal has committed serious error in accepting the document of debit note which is not permissible under Rule 9 of the CENVAT Credit Rules, 2004 which reads as under :-

"Rule 9. Documents and accounts.-

(1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely

(a) an invoice issued by-

(i) a manufacturer for clearance of -

(I) inputs or capital goods from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer;

(II) inputs or capital goods as such;

(ii) an importer;

(iii) an importer from his depot or from the Premises of the consignment agent of the said importer if the said depot or the premises, as the e may be, is registered in terms of the visions of Central Excise Rules, 2002;

(iv) a first stage dealer or a second stage dealer, the case may be, in terms of the provisions of Central Excise Rules, 2002; or

(b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short-levy by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made there under with intent to evade payment of duty.

Explanation. - For removal of doubts, it is clarified that supplementary invoice shall also include challan or any other similar document evidencing payment of additional amount of additional duty leviable und