Custom, Excise & Service Tax Tribunal
M/S.Warm Forging (P) Ltd vs Cce, Jaipur-I on 26 June, 2014
CUSTOMS EXCISE & SERVICE TAX APPELLATETRIBUNAL,
West Block No.2, R.K Puram, New Delhi-110066
COURT-III
Date of hearing:26.06.2014
Excise Appeal No.3098/2012
(Arising out of Order-in-Appeal No.76 (RDN)CE/JPR-I/2012 dated 10.07.2012 passed by the Commissioner of Customs & Central Excise (Appeals-I), Jaipur).
Excise Appeal No.3099/2012
(Arising out of Order-in-Appeal No.78 (RDN)CE/JPR-I/2012 dated 11.07.2012 passed by the Commissioner of Customs & Central Excise (Appeals-I), Jaipur-I).
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
1. Whether Press reporters may be allowed to see 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
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
__________________________________________________
M/s.Warm Forging (P) Ltd. Appellant
Vs.
CCE, Jaipur-I Respondent
Present for the Appellant : Shri Hemant Bajaj, Advocate
Present for the Respondent: Shri M.S. Negi, DR
Coram: Honble Mrs. Archana Wadhwa, Member (Judicial)
Final Order No. 52703-52704 Dated:26.06.2014
Per: ARCHANA WADHWA
Both the appeals are being disposed of by a common order as the issue involved is identical.
2. After hearing both sides duly represented by Shri Hemant Bajaj, Advocate and Shri.M.S. Negi, DR, I find that the appellant is engaged in the auto parts and is procuring its raw-material. From one dealer M/s. Regal Metals & Ferrow Alloys, New Delhi who in turn was procuring the goods from 3 manufacturers. The main raw-material is wire rod which was being cleared by the manufacturer by classifying the same under heading 7213. It is seen that while issuing the invoices, the dealer in some of the invoices described the goods as steel rods or steel rounds instead of adopting the description of wire rod, as mentioned in the invoices of the manufacturer. Further, while issuing the invoices the dealer also mentioned the particulars of the manufacturers invoice alongwith the tariff classification etc.
3. The Revenue initiated certain investigations at the end of the dealer and found that inasmuch as the description of the goods was changed from wire rods to steel rods or steel rounds alongwith the change in tariff entry in some of the cases, the appellant would not be entitled to the cenvat credit, as purchaser of the said inputs. Accordingly, proceedings were initiated resulting in passing of present impugned orders confirming the demands and imposing penalty upon the appellant.
4. It is worthwhile to reproduce the statement of Shri Jitender Rajpal, Partner and authorised signatory of M/s. Regal Metals and Ferro Alloys as dealt in the show cause notice as under:-
The statement of Shri Jitender Rajpal, Partner and authorized signatory of M/s Regal Metals & Ferro Alloys, New Delhi was again recorded on 18.06.07 before Superintendent, Central Excise, Delhi-I wherein he, interalia, stated that the change of description from wire rod to steel rod/steel round in their said invoices was because they thought that W/rod, steel rod, steel round were all the same items; that Wire Rod was being purchased in coil shape ; that they had not changed the shape or form of the wire rods. He further stated that as per his knowledge Wire Rod/ Steel round and steel rod were all one and same thing, so it might be possible that Wire rods were written as Steel rods / steel rounds and they might have written steel rod / round as wire rod also. Regarding the change in the tariff heading of the items purchased and sold against the said invoices, he stated that since the invoices were issued by the clerical staff, who were not so educated and prepared the invoices copying from the previous one and so it might be possible that the mistake might have been continued for a longer period; that they were regularly providing their returns with copies of their purchase and sales documents over a period to the department but they were not apprised of the mistake by the department that he did not check the invoices already issued to check whether the description or the tariff heading had been mentioned correctly in the sale invoices; that as per general trade practice they were neither mentioning the sizes in their sales invoices not it was ever demanded buy the customers. On being further informed that as per the invoices issued by them to all buyers/manufactures, the material as per Invoice given to the manufactures was steel rounds, whereas; the corresponding purchase invoice of the said material as reflected in RG-23 D register showed that he corresponding purchase was of Wire rod, so how could they issue invoices with respect to steel round, to which he stated that legally such invoices could not be issued.
5. As is seen from above, partner of the dealer has nowhere admitted that the note sent by him to the appellant was different than the goods received by him from the manufacturer. He has clearly mentioned that inasmuch as in commercial parlances wire rods is also known as steel rods or steel rounds that might have written the same as steel rods etc. Further, he has clarified that since the invoices are issued by the clerical staff who was not educated, there might be some deviation from the particulars as mentioned in the manufacturers invoice.
6. During the course of further investigation the statement of Shri Vijay Kohli, authorised signatory of the appellant was also recorded wherein he clarified that they have procured Steel Rods/Steel rounds from M/s.Regal Metals & Ferro Alloys and except the procurement of the goods from the said dealer on which they have availed the credit, they have not received any other raw-material from any other source. The said raw-material received by them has been used in the manufacture of final product which was cleared on payment of duty.
7. From the above, it becomes clear that Revenues case is only based upon assumptions and presumptions. Revenue is infact, not disputing that the appellant had not received raw-material from the dealer. Merely because the description of wire rods was changed in some cases to steel rods or steel rounds, which is an alternative description of the wire rods, the Revenue cannot deny the credit to the appellant, who had admittedly received the goods and have utilized the same in the manufacture of their final product. As such, I set aside the impugned orders, without going into the alternative plea of the appellant, as regards the demands being time barred. Both the appeals are allowed with consequential relief to the appellant.
(Dictated and pronounced in the open court).
(ARCHANA WADHWA) Member (Judicial) anita 5 5