Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs M/S. Atma Tube Products Ltd on 26 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 3787 of 2006-SM
[Arising out of Order-In-Appeal No. 665 & 666/CE/CHD/2006 dated 31.07.2006 passed by Commissioner of Central Excise (Appeals) Chandigarh]
For approval and signature:
Honble Ms. Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
Commissioner of Central Excise Appellants
Chandigarh
Vs.
M/s. Atma Tube Products Ltd. Respondent
Appearance:
Shri V.P. Batra, DR for the Appellants None for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Date of Hearing /Decision: 26.11.2013 ORDER NO . FO/ 58450 /2013-SM(Br) Per Ms. Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals) in denovo proceedings, the Revenue has filed the present appeal. I have heard Shri V P Batra, learned DR appearing for the appellant. Nobody appeared for the respondents.
2. As per facts on record, the appellant is engaged in the manufacture of tubes and pipes and CR strips. Revenues case is based on the ground that within the time gap of 5 to 15 minutes it is not possible to transport the goods twice in the same truck from Chandigarh to Derabassi, involving a distance of about 30 kms. The Honble Tribunal held in para 7, that there is considerable force in the submission of the Appellant that goods covered under more than one invoice which were prepared within the gap of 5 to 15 minutes were dispatched in one truck at the same time. In view of the above observation the Honble Tribunal vide its above final order remanded the matter back to the Adjudicating Authority for deciding the matter afresh and also took into G.Rs and Octroi Receipts. The Appellant had submitted the copies of invoices along with related copies of G.Rs and Octroi Receipts in a folder before the Adjudicating Authority and the submission was made that goods covered under more than one invoice which were prepared within the time gap of 5 to 10 minutes were dispatched in one truck at the same time.
3. While dealing with the above contention of the assessee, Commissioner (Appeals) observed as under:
I have carefully examined the case records including the Appellants submissions made in writing and at the time of personal hearing and observe that the Adjudicating Authority has disallowed the modvat credit and impose penalty on the Appellant on the grounds that inputs had been cleared twice in the same truck under two different invoices and the time of preparation/removal varied from 5 to 10 minutes during which period it was physically impossible to make two visits from Chandigarh to Derabassi a distance of about 25-30 Kms. The contention of the Appellants is that the invoices which were prepared within a time gap of 5 to 15 minutes were for smaller quantities of the inputs i.e. ranging from 3 Mts. to 5 Mts. and it is always possible to load the quantity mentioned in 2 to 4 invoices in the same truck. I have examined a number of invoices and observe that the quantity mentioned on such invoices is such that it is possible to load the quantity mentioned in more than one invoice, in the same truck. Not only that the Appelalnts have produced the copies of the Octroi Receipt and G.R.s in support of the contention that the inputs were received by them in their factory. However, the advocate of the Appellant produced private records like the gate inwards register, receipt of inputs that RG 23 A Part I register which is a statutory register reflects that inputs were received in the factory and used in the manufacture of final products and this statutory register is more authentic then private records which are not mandatorily required to be maintained, that in case the inputs were not required then the final goods were manufactured that there is no objection from the Department that duty on final products has been paid wrongly or final goods were not manufactured that they have no produced copies of octroi receipts and copies of G R relating to invoices in question. Moreover, the adjudicating authority could have verified from the jurisdictional Range office of supplier whether they have paid duty or not. The supplier have not been issued any show cause notice that they have not paid duty and this proves that duty has been paid on the said goods as received by the appellant. Further the appellant had made running payments to the supplier through Cheques/ Demand Drafts against the inputs received from said suppliers. Moreover, it is squarely covered in the case f Neera Enterprises vs. CCE [1998 (104) ELT 382 (Tri) and held that credit cannot be denied merely because time of removal of goods was omitted to be mentioned on the invoices. In the case of Gomti Engineering Works vs. CCE 1998 (103) ELT 156 (Tri). It was held that mode of transport and vehicle number need not be indicated in Rule 57GG invoices. Similarly in the case of M/s. Smruti Organics Ltd vs. CCE 1998 (101) ELT 74 (Tri). It was held that credit cannot be denied on the grounds that the invoices did not contain the details of the mode of transport so long as there was no dispute that duty had been paid.
4. The Revenue in their memo of appeal have not been able to effectively rebut the above finding of the Commissioner (Appeals) except to show the invoices were made at a time gap of 5 to 15 minutes. As rightly held by Commissioner (Appeals), the goods involved in all these invoices can be transported in one truck load and there being no other evidence on record, the said fact cannot be adopted in prejudice to the assessees case. I find no infirmity in the order of Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.
( operative part of the order pronounced in the open Court )
( Archana Wadhwa ) Member(Judicial)
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