Custom, Excise & Service Tax Tribunal
M/S Resham Petrotech Ltd vs C.C.E. & S.T. Vapi on 9 January, 2018
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/13387, 13439-13440/2014-SM [Arising out of OIA No. VAP-EXCUS-000-APP-147-149/2014-15 dated 10.07.2014 passed by Commissioner (Appeals) Vapi] M/s Resham Petrotech Ltd. Appellant Shree Gopalji Karn Shashikant Ramchandra Majhi Vs C.C.E. & S.T. Vapi Respondent
Represented by:
For Appellant: Sh. H. G. Dharmadhikari (Advocate) For Respondent: Shri. L. Patra (A.R.) CORAM:
HONBLE M.V. RAVINDRAN, MEMBER (JUDICIAL) Date of Hearing:04.01.2018 Date of Decision:09.01.2018 Final Order No. A/ 10075-10077 /2018 Per: M.V. Ravindran All these three appeals are directed against order-in-appeal No. VAP-EXCUS-000-APP-147-149/2014-15 dated 10.07.2014, hence, being disposed of by a common order.
2. Heard both the sides and perused the records.
3. On perusal of records, it transpires that the issue is regarding denial of cenvat credit to M/s Resham Petrotech Ltd. (main appellant) for availing cenvat credit without receipt of inputs and raising the credit based on only two documents and penalties on other appellants.
4. It is the case of the Revenue that their main appellant had availed cenvat credit on only the invoices received from one M/s Turakhia Polymers Pvt. Ltd. (TPPL), who were registered dealer. To make this allegation, and findings in consonance with the allegation, lower authorities have relied upon the statements of the Authorized Signatories of TPPL as also the officers of the main appellant herein.
5. Ld. Counsel submits that when the officers visited the factory premises, they found that there was excess stock of finished goods and raw materials than the recorded balance and those goods were seized and investigation was carried out. Show Cause Notice was issue for the confiscation of such finished goods and inputs found in excess. The said Show Cause Notice was adjudicated and goods were confiscated and redemption fine was imposed along with penalty. The Tribunal vide Final Order No. A/1627-1628/WZB/AHD/2007 dated 09.07.2007 set aside the confiscation of the finished goods and the raw materials holding that there is no justification. It is his submission that once a Show Cause Notice dated 31.03.2005 was issued, for the confiscation of the goods, the current Show Cause Notice dated 31.08.2009 have issued almost after four years is hit by limitation as the Show Cause Notice in the case in hand is outcome of the investigation which was carried out on the issuance of the Show Cause Notice in the earlier case. He relies upon the decision of the Honble High Court of Bombay in the case of CCE Mumbai-II vs Cona Industries 2017 (352) ELT 12 (Bom.) for the proposition. It is his further submission that the denial of cenvat credit is based only on th statements recorded of the appellants officers and the authorized signatories and registered dealers of TPPL and no other corroborative evidence is annexed. It is his submission that during the course of investigation and stock taking, the officers did not find any excess stock or shortage of the stock, itself proves that there was no material which was received unaccounted. It is also submitted that Provision of 9D of Central Excise Act, 1944 is not followed while arriving at the conclusion.
6. Ld. DR on the merits of the case submits that the individuals who are officers of the main appellant have categorically admitted that they have raised the credit based upon only documents and material was not received and it is supported by the statement of the suppliers, responsible officers, would mean that material/ inputs did not accompany the documents to the appellants premises. It is his further submission that as regards, the Show Cause Notice being time barred cannot the Show Cause Notice dated 31.03.2005 was in respect of the show cause for confiscation of finished goods found excess and the raw materials found during the investigation that was carried out in the appellants premises. The short issue involved in that case and the issue involved in this case are totally different. The Show Cause Notice in the current appeal before the Tribunal was issue on 31.08.2009 after investigation which was carried out hence the question of limitation does not arise.
7. On careful consideration on the submissions made by both sides, I find that the entire issue can be disposed of on the point of limitation itself. It is undisputed and noticed from the records that, arising out of the investigation, the visit to the main appellant premises, Show Cause Notice dated 31.03.2005 was issued for confiscation of the finished goods and raw materials which were found in excess. The preamble of the Show Cause Notice specifically records that on the basis of intelligence collected, the factory premises of the main appellant was visited. The current Show Cause Notice in the appeal in hand is also stating the very same preamble and demands the duty from the appellant for availing cenvat credit without receipt of the materials. The Show Cause Notice earlier issued was decided by the Tribunal in favour of the appellant herein by setting aside the confiscation, in my view, the Show Cause Notice in this appeal which has been issued on 31.08.2009 seems to be patently hit by limitation as stand decided by the Honble High Court in the case of Cona Industries (Surpa). The facts of the case in Cona Industries and the issue in hand in these appeals are the same. With great respect, I reproduce paragraph No. 7 from the decision of Honble High Court in the case of Cona Industries.
7.?Having heard both sides, what we have found is that the Tribunal, in the impugned order, has rested its conclusion on all three aspects. However, what was material for our purpose is the undisputed fact that the Preventive Officers started inquiry on 29th June, 1996 and issued a show cause notice dated 26th March, 1997. The adjudication proceedings were held and an order came to passed on 12th December, 1997, which was under challenge before the Commissioner of Central Excise (Appeals). This appeal was withdrawn as the respondent had availed of Karvivad Samadhan Scheme. Thereafter, on the very same allegations and documents, another show cause notice dated 13th January, 1999 was issued and that was for the above purpose. Though the Commissioner (Appeals) confirmed this demand, what one finds from a reading of his order as well that the basis for the show cause notice dated 26th March, 1997 was the seizure. It is in these circumstances that we find that the CESTATs conclusion is unassailable. The very issue, which was raised before the Honble Supreme Court in the judgment relied upon by Mr. Patil, has been considered and we do not think that a different view of the matter can be taken in the light of the binding pronouncement.
8. The above said ratio would directly apply in the case in hand and accordingly, I hold that the impugned is unsustainable on limitation and is liable to be set aside and I do so. Since I dispose all the appeals based upon only on the limitation, following the ratio of the judgment of Honble High Court of Bombay, I am not recording any findings on various other arguments made by both sides.
9. In view of the foregoing, the impugned order is set aside and the appeals are allowed only on limitation.
(Pronounced in the open court on 09.01.2018) (M.V. Ravindran) Member (Judicial) Neha 2 | Page E/13387,13439-13440/2016-SM