Custom, Excise & Service Tax Tribunal
M/S. Vijay Bharat Road Lines Pvt. Ltd vs Cce, Delhi-Iv on 16 March, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. BENCH-,,,,,SM Excise Appeal No.E/643/2010-SM Excise Appeal No.E/733/2010-SM Excise Appeal No.E/734/2010-SM [Arising out of Common Order-in-Appeal No.173-175/CE/Appl/DLH-IV/2009 dated 06.01.2010 passed by the Commissioner of Central Excise (Appeals), Delhi-I]. M/s. Vijay Bharat Road Lines Pvt. Ltd. M/s. Namo Alloys Pvt. Ltd. Mr. Rishabh Jain Appellants Vs. CCE, Delhi-IV Respondent
Present for the Appellant : Shri.K.K.Sharma, Advocate Present for the Respondent:Shri.Bharat Bhushan, DR Coram: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER Date of Hearing/Decision:16.03.2012 ORDER NO. _______________ DATED:________ PER: D.N.PANDA Shri A.C. Jain, ld. Counsel appearing on behalf of appellants 2 and 3 states that when the goods i.e. aluminium ingot carried by truck No. HR 38N-3274 moved from the factory of the appellant M/s. Namo Alloys Pvt. Ltd. at Faridabad for weighment of the contents in the truck to satisfy to the terms of the purchase order placed by buyer M/s. Quality Circles vide Ref. No.QC/152/2007-08 dated 29.1.2008 (at page 15 of the appeal folder in appeal case No.E-733/2010, Investigating authorities intercepted the truck on 01.02.2008 and without finding the invoice in the truck made out a case against the appellant alleging that the goods were dispatched without duty being paid. He invited attention to page 15 of the appeal folder of Appeal case No.E/733/2010 in the case of Namo Alloys (P) Ltd. to show the copy of invoice of the Bharat Aluminium Company Ltd. According to the appellant the goods were purchased from Bharat Aluminium Company Ltd. and were accounted for. According to purchase order, at page 16 of the appeal folder in Appeal case No.E/733/2010 the impugned goods were sent to weighment centre (Dharam Khanta) to get weighment slip for satisfaction of M/s. Quality Circle/buyer. Revenue raised the issue as to whether the goods carried out by the Truck were unaccounted in the hands of the appellant. They had no patience to find out what was the modus operandi followed by the appellant. Statements recorded from Rishab Jain which is available in appeal record No.734 was used against the appellant to show that goods in truck were unaccounted. So also statements were recorded from the accounting personnel of the appellant and used the same by the appellant. According to trade practice if a buyer requires his goods to be weighed outside and supported by evidence of weighment that obligation is to be carried out by seller. This is a case where such an obligation was carried out and investigating authority did not make any enquiry at the end of the buyer nor at the end of the manufacturer of the impugned goods i.e. Bharat Aluminium Company Ltd. Without obtaining trail of evidence, the evidence relied by the appellant was discarded by Revenue to make out a case against the appellant. Had Revenue started its enquiry from Bharat Aluminium Company Ltd. to ascertain that the goods sent by the said concern whether was accounted by the appellant and whether the goods so accounted was different from the goods supplied by Bharat Aluminium Company Ltd. that could have enabled them to know whether there was any discrepancy. They gathered no evidence to establish that the appellant procured no duty paid goods. Ld. Counsel for appellants therefore submitted that when duty paid goods were in the factory of the appellant at Faridabad and that remained undisputed, because the truck was to go for weighment outside and to come back to carry accompanying documents only after weighment, Revenue cannot find fault with the appellant for which the appellant and its General Manager Rishab Jain succeed.
2. It was also submission of the ld. Counsel that in absence of any malafide of the appellant but for the impatient behaviour of the investigating authority, the appellant should not suffer any duty liability and penalties.
3. Shri K.K. Sharma, ld. Counsel appearing for the transporter M/s. Bhart Road Lines Pvt. Ltd. adopts the argument of Shri Jain to submit that when the above main appellants succeeds the present appellant who is a transporter shall not suffer liability of penalty.
4. Ld. Representative for Revenue supports order of the authority below.
5. Heard both sides and perused record.
6. It is a truth that investigation intercepted the truck in question and found certain goods contained in the truck. Neither they could reach to the third party i.e. buyer of the goods to find out whether it is its trade practice of the appellant to seek weighment out side according to purchase orders or not. The investigating authority did not verify the stock register of the Namo Alloys Pvt. Ltd. to ascertain as to whether duty paid goods or non-duty paid goods were transacted by the appellant. When failure of Revenue came at the beginning stage due to no verification of stock record nor even enquiry was conducted at the end of Bharat Aluminium Company Ltd. the invoice issued by said concern was proved to be evidence of supply of duty paid goods to Namo Alloys. It is difficult to negate the particulars of the content of the truck which can be held to be the goods described in the invoice at page 15 as aforesaid. It cannot be presumed that the appellant had dealt with no duty paid goods sent for weighment.
7. There is no trail of evidence on record to suggest that appellant followed questionable modus operandi when nothing is found to be untruthful from the buyers end i.e. Quality Circle as to the placing of order nor from the weighment agency nor from the supplier of the goods.
8. Even though, there were admissions by Shri Rishab Jain that was failed to be corroborated by Revenue either from the primary evidence or circumstantial evidence. No doubt as per section 14 of Central Excise Act 1944, the contents of the statement should have veracity and unerringly demonstrate the facts and circumstances of the case. There was no basis for investigation to suspect and issue show cause notice.
9. In view of the above, there is no possibility to uphold the adjudication for which appeal of the main appellant is allowed. Shri Jain explains that initially in respect of the self same goods, cenvat credit was taken but that being traded later and no manufacture using such goods was done, cenvat credit taken thereon has already been reversed.
10. In view of the above all the three appeals succeed and allowed. Consequential relief under law to follow.
[Dictated & Pronounced in the open Court].
(D.N.PANDA) JUDICIAL MEMBER Anita