Custom, Excise & Service Tax Tribunal
M/S Steel Mongers (I) P.Ltd vs Cce, Delhi-Iii on 19 March, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Stay Application No.1008 of 2011 in
Excise Appeal No. 828 of 2011(SM)
[Arising out of Order-In-Appeal No.495/BK/RTK/2010, dated 24.12.2010 issued by CCE, Delhi-III]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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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?
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Whether Order is to be circulated to the Departmental authorities?
M/s Steel Mongers (I) P.Ltd. Appellants
Vs.
CCE, Delhi-III Respondent
Coram: Honble Ms. Archana Wadhwa, Judicial Member Appearance:
Shri N.K.Sharma, Advocate for the Appellants Shri Sanjay Jain, DR for the Respondent Date of Hearing/decision : 19.03.2012 ORDER NO . ___________DATED________ Per Ms. Archana Wadhwa:
After dispensing with the condition of pre-deposit of penalty of duty Rs.50,000/-, I proceed to decide the appeal itself in as much as the issue lies in a narrow compass.
2. The appellants are a second stage dealer of iron and steel goods. It stands alleged by the Revenue that he has not received the goods under the invoices issued by the first stage dealer. The above allegation and findings are based upon the statement of Shri K.P.Khemka, Director of the manufacturing unit as also Shri Rupesh Bansal, Director of first stage dealer.
3. Ld. Advocate for the appellants draws my attention to the statement of Shri Bansal recorded during the course of investigation. Specific question No.3 is to the effect as to which party he has supplied the invoices only without the corresponding supply of goods. By answering the above question, he has given the names of various parties/second stage dealers. The appellants name is NOT appearing in that list.
4. Apart from above, ld. Advocate also draws my attention to the statement of Shri Susheel Jain, who has purchased the goods from the appellants. It stands clearly recorded I the said statement that they have actually received the goods mentioned in the invoices issued by the present appellants. He has confirmed the receipt of the raw material along with invoices at their factory. Apart from above, the transporter Shri Suresh Sharma has admitted having delivered the goods at the premises of the appellants buyers. As such ld. Advocate submits that there is nothing on record to show that the appellants have only issued invoices without the actually supply of the goods.
5. Ld. DR appearing for the Revenue submits that admittedly the manufacturer as also the first stage dealer has deposed that they were engaged in issuing only invoices without the actually supply of goods. However, he fairly agrees that the appellants name is not appearing in the list of such customers, disclosed by the first stage dealer.
6. After appreciating the submissions made by the both the sides, I find that the first stage dealer has given the names of 8 second stage dealers/customers to whom the invoices stands issued without the actual supply of goods. Revenue has entertained a view, as if the said first stage dealer had not supplied the goods to any of his customers. Commissioner (Appeals)s order, imposing penalty upon the appellants, is on the basis of observations/findings that in tax laws, preponderance of probability is required to be the basis. However, in the absence of virtually no evidence against the appellants, the above principle adopted by Commissioner(Appeals) is neither justified nor warranted. The entire case against the appellants is made on the basis of statement of co-accused which statements in fact do not even implicate them. It has to be kept in mind that the statement of the appellants does not stand recorded and the statements of his buyers are to the effect that the goods were received along with the invoices.
7. In view of the above, I find no reason to impose penalties upon the appellants. Accordingly, the same is set aside and appeal is allowed with consequential relief. Stay petition as also the appeal gets disposed of in above manner.
(Pronounced in the open Court)
(Archana Wadhwa) Member(Judicial)
RK-I
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