Custom, Excise & Service Tax Tribunal
Cce Pune I vs M/S. Pioneer Industries on 5 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/3119 to 3125/05 Mum
(Arising out of Order-in-Appeal No. PI/227/05 dated 02.05.2005 passed by the Commissioner of Central Excise & Customs (Appeals)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Pune I
:
Appellant
Versus
M/s. Pioneer Industries
Shri Manilal Shah
Shri Ashok N. Shah
Shri Islam Ahmed Chand
Shri R.R. Upadhyaya
Shri Raj Kamal Jha
Shri Anil Kumar Singh
Respondent
Appearance Shri D.D. Joshi, Supdt (A.R.) For appellants Shri Brijesh Pathak, Advocate For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 05.03.2014 Date of Decision : 05.03.2014 ORDER NO.
Per Ashok Jindal Revenue is in appeals against the respondents.
2. Brief facts of the case are that the main respondent M/s Pioneer Industries purchased certain inputs from M/s. Swastik Metal Corporation and manufactured final products and cleared the same on payment of duty. The main respondent filed RT-12 returns regularly and the same has been accepted by the department. The allegation against the respondent was that the respondent has received the invoices but has not received the inputs physically. To allege the same, the only evidence with the department is that the statements of the transporters wherein they said that the vehicle Nos. shown in the invoices is wrong and confirmed that the vehicle had not transported the goods to the respondents factory. Therefore, a case was booked against all the respondents by denying input credit to the main respondent along with the penalty and also imposed penalties on all the respondents. The adjudicating authority confirmed the demand and imposed penalties on all the respondents. On appeal, the Commissioner (Appeals) set aside the adjudication order. Aggrieved by the said order, the Revenue is before me.
3. Heard both sides.
4. The learned A.R. submits that as per the statements of the transporters, the goods have not been transported to the factory of the respondents and the onus to prove that they have received the goods as mentioned in the invoices is on the respondents. He further submits that the main respondent should have been maintained the records of Vehicle No., quantity, mode of transport at the time of receipt of the goods but they were not maintaining the same. Therefore, it is proved that the respondent has not received the inputs merely on the basis of the invoices they have availed Modvat credit. Therefore, the learned A.R. prays that the impugned order is required to be set aside.
5. On the other hand, the learned Counsel appearing for the respondents submits that in this case the main respondent is a manufacturer of excisable goods. The goods covered under the invoices have physically received in their factory and the same have been used for the manufacture of final products which have been cleared on payment of duty. It is further submitted that the main respondent has filed RT-12 returns which has been duly accepted by the department and the demand has been raised by invoking extended period of limitation. He further submits that the inputs received by them being not full truck load, the transporters dispatched the goods in other vehicle which is going to Pune and therefore, the vehicle numbers are generally changes. To ascertain this fact, proper investigation has not been made. In these circumstances, the statement of transporter is not reliable. He further submits that all the payments have been made through banking channels and there is no short or excess inputs have been found in their factory. In these circumstances, the allegation is not sustainable. Therefore, the first appellate authority has rightly set aside the adjudication order and the same is to be confirmed. To support his contentions he relies on the decision of the Honble High Court of Punjab and Haryana in the case of CCE vs. Neepaz Steels Ltd. - 2008 (230) ELT 218 (P&H).
6. Considered the submissions and perused the records in detail.
7. The case is made out by the department against the respondents on the basis of statements of the transporters that they have not transported the goods to the factory of the main respondent. Vehicle No. was given in the invoices. Mode of transport of inputs into the factory of the main respondent has been explained but the same has been controverted by the Revenue. Further, all the payments of inputs procured by the respondent have been made through banking channel. I also find that there is no shortage or excess inputs are found in their factory during the investigation. Moreover, the inputs have been used for the manufacture of final product. The main respondent has filed RT-12 returns regularly and the same has been accepted by the department. In these circumstances, relying on the decision in the case of Neepaz Steels Ltd. (supra) wherein the Honble High Court held that when findings of the Commissioner (Appeals) clearly established that the RT-12 returns have been assessed finally by the Range Officer which contains all the documents including the invoices under dispute on the basis of which the MODVAT credit has been availed and utilized and that payments for the purchase of inputs have been made through cheque/demand draft. In these circumstances, it cannot be alleged that the goods have not been received in the factory of the respondent. Therefore, following the decision of the Honble P&H High Courts decision in the case of Neepaz Steels Ltd. (supra) I do not find any infirmity with the impugned order and the same is upheld. The appeals filed by the Revenue are dismissed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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