Custom, Excise & Service Tax Tribunal
Cce, Chandigarh vs M/S. Sudesh Enterprises on 26 April, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. III Excise Appeal No. 2877-2878 of 2005-EX[DB] [Arising out of Order-In-Appeal No 203-204/CE/CHD/2005 dated 27.5.2005 passed by Commissioner of Central Excise (A), Chandigarh] For approval and signature: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Rakesh Kumar, Member (Technical) 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CCE, Chandigarh Appellants Vs. M/s. Sudesh Enterprises Respondent
Shri Kamal Anand, Managing Partner Appearance:
Shri R.K. Mathur, DR, for the Appellants None for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Rakesh Kumar, Member (Technical) Date of Hearing/decision : 26.04.2013 ORDER NO . FO 56227-56228 /2013-Ex(Br) Per Archana Wadhwa (for the Bench):
Both the appeals of the Revenue are being decided by a common order as they arise out of same impugned order.
2. It is seen that originally demand was raised against the respondents based upon the invoice of Bitumen Emulsion recovered from the respondents Customers M/s. H P Public Works Department. Inasmuch as there were three sets of invoices, Revenue entertained a view that the respondents have cleared their final product under all sets of invoices and have evaded payment of duty. Accordingly, demand was raised and confirmed along with imposition of penalty.
3. While dealing with the respondents appeal, Commissioner (Appeals) observed as under:-
I have gone through the said Consolidated /proforma invoices which shows that the same are not despatch document but are only Consolidated Invoices / Proforma Invoices prepared against the original despatch invoice. These proforma or Consolidated Invoices nowhere shows any despatch details rather also bears the reference of original despatch invoices. The said Proforma or Consolidated Invoices are meant for Accounts Payment purposes from the Govt. Departments. The explanation given by the Appellants has force which merits to be accepted as the documents is only a Proforma Invoice/ Consolidated Invoice bearing the reference of original despatch invoice. Therefore, the said document cannot be taken as despatch document for purpose of determining the value of total clearances.
Apart from the said argument, the Appellant have further contended that there is no evidence of any manufacture of alleged clearances. Neither there is receipt of any raw martial or manufacture nor dispatch of any good corresponding to the alleged clearances in clandestine manner. On going through the impugned order as well as Show Cause Notice, it is found that there is no reference of receipt of any raw material or manufacture or dispatch of alleged clearances in clandestine manner. The demand has been confirmed on the basis of some details received from the HP PWD for which the Appellants have explained that the same is simply on the basis of Consolidated Invoices or Proforma Invoices which is not the actual removal of goods but is only for accounting/payment purposes. However, no record of any type whatsoever be evidencing receipt of raw material/manufacture or removal/Transport document/GRs of alleged clearances in clandestine manner has been either referred or relied upon by the Adjudicating Authority. Even the communication of PWD Department is not supported by any corroborative evidence. There is also no confessional statement regarding removal of excess clearances. The Appellants have contended that alleged suppression of clearances are not support by any document like GR/Transport document showing dispatch of goods. It is highly illogical that the officers instead of investigating the matter independently preferred to simply rely upon the communication of some other office. It is not understood as to why the Officers totally ignored to collect the basic evidence in the nature of record of receipt of raw material/manufacture or removal/dispatch/Transport document/GRs relating to alleged excess clearances.
I find that the issue is squarely covered with judgement in the case of M/s Arch Phatmalabs Ltd., Vs CCE reported as 2005 (182) ELT 413, wherein it has been held that demand is not sustainable in the absence of evidence regarding receipt of inputs or manufacture of goods and removal thereof. Moreover, in this case the goods are being supplied to Govt. Departments, which cannot be suspected. Therefore, the findings of the Adjudicating Authority are not sustainable. Hence the demand is vacated and impugned order is set aside.
4. The Revenue, has not advanced any other evidence on record to show that clearances were effected in each invoices which are infact replica of original invoices being despatch invoice and proforma invoice. Admittedly there is no other evidence reflecting upon the clearance of the final product or in respect of raw material and its utilization in the clandestine manufacturer of final product. Commissioner (Appeals) has rightly set aside the confirmation of demand made on the finding of clandestine removal which in turn are based upon the despatch invoices and proforma invoices which are nothing but replica of the original invoice.
5. In view of the above, we reject the appeals filed by the Revenue.
(Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
( Rakesh Kumar ) Member(Technical)
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