Per. B. Ravichandran :- There are two appeals directed against order-in-original No. 32-33/D-1/2009 dated 30/11/2009 of Commissioner of Central Excise, Delhi. The appellants are engaged in the manufacture of wires and cables. They are availing Cenvat credit on the inputs used in the manufacture of their final product. They have received inputs from M/s Satya Metals, Jammu and also from M/s All India Metal Traders, Delhi who is a registered dealer and who supplied the inputs manufactured by M/s Satya Metals, Jammu. Officers of Central Excise, Jammu Commissionerate conducted certain inquiries regarding the eligibility of M/s Satya Metals for the concession under Notification No. 56/2002-CE dated 14/11/2002 and correctness of duty payment to the DTA clearance by the said firm which is a 100% EOU. A communication dated 30/07/2008 was sent by the Additional Commissioner, Central Excise, Jammu to the Commissioner, Central Excise, Delhi I stating that the self-credit availed by M/s Satya Metals was used for payment of duty for their clearance to DTA and such payment using self-credit is not admissible to the assessee. Accordingly, the goods cleared by M/s Satya Metals is without payment of duty and credit taken in respect of above duties by the buyers is irregular and inadmissible. Based on this communication, proceedings were initiated against the appellant to recover this Cenvat credit taken on the inputs received from M/s Satya Metals, Jammu directly or through their dealers M/s All India Metal Traders, Delhi.

2. Two show cause notices dated 11/12/2008 and 29/04/2009 were issued to the appellant to recover the inadmissible credit of Rs. 2,91,64,811/- after due process the case was adjudicated by a common order. The learned Commissioner disallowed the above-mentioned Cenvat credit and imposed penalty equal to the said credit amount. Aggrieved by this order, the appellant is before us.

3. The learned Counsel for the appellant Shri N. Mullick submitted that the facts that the inputs have been duly received by the appellants in their factory on the strength of Central Excise invoice showing the amount of duty involved and such invoice carries the name of the appellant that all required details are not in dispute in the present proceedings. Certain proceedings initiated against the supplier of the said inputs for denial of concession under Notification 56/2002-CE/ 100% of EOU cannot be a legal reason for denying the credit to the appellants. The appellant filed complete account confirming payments having already been made by them to M/s Satya Metals for copper wire purchased from them. The credit availed by them has been in strict compliance of the Cenvat Credit Rules. Learned Counsel stated that the Commissioner of Central Excise, Delhi has no jurisdiction over the supplier of inputs and has absolutely no authority to decide the eligibility or otherwise of the supplier for certain concessions claimed by them (supplier). Any dispute being raised by the officers of Central Excise, Jammu communicated over a letter to the Jurisdictional Delhi Commissioner cannot be the reason for recovery of Cenvat credit taken by the appellant validly. Learned Counsel submitted it is also relevant that the correctness of self-credit availed by the supplier in terms of Notification No. 56/2002-CE has not been decided by the Jurisdictional Authority. As such, the learned Counsel contended that the action of the learned Commissioner, Delhi in ordering the denial of credit to the appellant is without the basis of law. The learned Counsel further submitted that the Honble High Court of Himachal Pradesh vide their order dated 31/05/2012 upheld the claim of the suppliers unit in Himachal Pradesh on the eligibility of exemption under Notification 50/2003-CE on similar set of facts.

4. The learned AR Shri R.K. Mishra reiterating the findings of the Original Authority and stated that the inputs received have not discharged the due duty and as such the credit is not available to the appellant.

5. We have heard both the sides and perused appeal records. The point for decision is the eligibility or otherwise of the appellant for the Cenvat credit taken on the inputs received from Satya Metals, Jammu, received directly and through M/s All India Metal Traders, Delhi. We find that the proceedings against the appellant were initiated only on the ground that there arose a dispute regarding the eligibility of the supplier of inputs for the exemption under Notification 56/2002-CE dated 14/11/2002. The learned Commissioner in his discussion and findings observes that duty has not been discharged by M/s Satya Metals, Jammu and invoices issued by M/s All India Metal Traders, Delhi dealer of M/s Satya Metals, Jammu is not eligible for credit for the appellants. Strangely, learned Commissioner relied on Tribunals order in the case of Bengal Hammer Industries (P) Ltd. vs. CCE, Kolkata II reported in 2009 (240) E.L.T. 257 (Tri. Kolkata) which deals with credit availability on forged/fake document. We are not able to appreciate the relevance of that case law to the present proceedings. The learned Commissioner further observes that the credit availed by the appellant is clearly in violation of Rule 3 of Cenvat Credit Rules, 2004. Again the relevance of provision of Rule 3 to the present proceedings are not clear. We find that the learned Commissioner first decided, without any jurisdiction, on the non-payment of duty by M/s Satya Metals, Jammu and there upon proceeded to deny the credit of such duty availed by the appellants. On careful perusal of the impugned order, we could not find any evidence regarding the conclusive finding of any Competent Authority of the correct jurisdiction regarding the non-payment or irregular availment of any concession by the supplier of inputs, namely, M/s Satya Metals, Jammu. As submitted by the appellant as on the date of issue of the impugned order, there is no finding by the Jurisdictional Central Excise officers of Jammu, on conclusion of a proper proceedings that the duty payment as claimed by M/s Satya Metals is irregular as the concession claimed by them for self-credit to discharge such duty is not legally available to them. In the absence of such finding, it is not within the powers of the learned Commissioner, Delhi to deny the credit available to the appellant, which was admittedly not contested by the Revenue on any other grounds. It is an admitted fact that the inputs have been received under a cover of duty paying documents and the appellants also submitted details of payment of full dues to the supplier of raw material. It is also admitted fact that the inputs are used in the manufacture of dutiable final product by the appellants. Reliance can be placed on the Tribunals decision in R.S. Industries vs. CCE, New Delhi I reported in 2003 (153) E.L.T. 114 (Tri. Del.). The Tribunal held that as far as appellants are concerned there was neither any error nor any misconstruction on their part. The show cause notice can be issued only to person who committed any error or fraud and not for another persons act. The said decision of Tribunal has been approved by Honble Delhi High Court. Similar view on the responsibility of the recipient input was taken by the Tribunal in S.K. Foils Ltd. vs. CCE, Rohtak reported in 2015 (315) E.L.T. 258 (Tri. Del.). The Tribunal in that citing and relying on earlier decisions held in the absence of any dispute about the receipt of inputs under the cover of the invoices issued by the supplier carrying duty payment details, credit availed by the recipients cannot be denied.

6. Considering the above discussion, we find the impugned order is not legally sustainable. We accordingly set aside the same and allow the appeals. (Operative part of the order pronounced in the open court.) (Sulekha Beevi C.S.) Member (Judicial) (B. Ravichandran) Member (Technical)