On a perusal of the records and hearing both sides, I find that the short question to be considered in this case is whether the appellant can claim CENVAT credit of the additional duty of customs (CVD) paid on the capital goods received by them under the cover of a commercial invoice and an endorsed Bill of Entry issued by the importer of such goods. The capital goods were imported by one M/s. Donaldson India Filter Systems Pvt. Ltd. vide Bill of Entry No. 841242, dated. 1-1-2009. The Bill of Entry was endorsed in favour of the appellant and, on the basis of the endorsed document, the appellant took CENVAT credit of the CVD paid on the capital goods. In a show-cause notice dated 6-1-2010 issued by the Department, the credit was sought to be denied on the ground that the endorsed Bill of Entry could not be considered as a valid document under Rule 9 of the CENVAT Credit Rules, 2004 for the purpose of availment of CENVAT credit. The appellant contested this demand by relying on case law. The adjudicating authority confirmed the demand against the party and also demanded interest thereon. No penalty was imposed. The Order-in-Original was upheld by the Commissioner (Appeals) in an appeal filed by the assessee. Hence the present appeal.

2. The learned counsel for the appellant has produced a commercial invoice dated 5-1-2009 issued by the importer. But this document does not contain the essential particulars such as the amount of duty, description of the goods, the assessable value of the goods etc. and, therefore, the benefit of CENVAT credit cannot be claimed on the basis of this document. It is also seen that this document was not produced before the lower authorities.

3. The learned counsel has argued that, though there is no specific provision for endorsement on a Bill of Entry, endorsed Bills of Entry have been accepted by this Tribunal, High Courts etc. as valid documents for availment of CENVAT credit. In this connection, reliance is placed on Marmagoa Steel Ltd. v. UOI [2005 (192) E.L.T. 82 (Bom.)]. Per contra, the learned Additional Commissioner (AR) has relied on Khandelwal Laboratories Ltd. v. Commissioner [2011 (263) E.L.T. A139 (Bom.)].

4. In the case of Marmagoa Steel Ltd. (supra), CENVAT credit of CVD paid on certain inputs imported by one M/s. Essar Gujarat Ltd. was claimed by M/s. Marmagoa Steel Ltd. on the basis of three Bills of Entry. The credit was sought to be denied on the ground that the Bills of Entry were not endorsed in favour of M/s. Marmagoa Steel Ltd. The Hon'ble High Court, after finding evidence of payment of CVD on the imported inputs and also evidence of the inputs having been received by M/s. Marmagoa Steel Ltd. and utilized in their factory, took the view that the credit was admissible. In the present case, the Department has no case that the imported capital goods were not received in the appellant's factory or not used for the purpose of manufacturing excisable goods. The limited ground raised for denying CENVAT credit to the appellant is that the endorsed Bill of Entry is not one of the documents prescribed under Rule 9 of the CENVAT Credit Rules, 2004. It is interesting to note that, in the case of Marmagoa Steel Ltd., the Department wanted the Bills of Entry to be endorsed in favour of that company so that the said company can claim CENVAT credit of the CVD paid thereon. The Hon'ble High Court found no provision of law for such endorsement of Bill of Entry. There is no such provision under the CENVAT Credit Rules, 2004 either. Nevertheless, this was not the relevant consideration for the Hon'ble High Court to take a view in favour of the above company. The Court took note of the fact that the inputs were duly received in the factory and used in the manufacture of excisable products. On this basis, regardless of the nature of the Bills of Entry, the party was held to be eligible for CENVAT credit. In the instant case, it is not even the case of the Department that the capital goods in ques