Custom, Excise & Service Tax Tribunal
New Bombay Ispat Udyog Pvt. Ltd vs Commissioner Of Central Excise & ... on 19 February, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/610 to 612/10 [Arising out of Order-in- Appeal No. AKP/26 to 28/NSK/2010 dated 27/1/2010 passed by the Commissioner(Appeals) of Central Excise & Customs, Nasik] For approval and signature: Honble Mr Ramesh Nair, 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 : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
New Bombay Ispat Udyog Pvt. Ltd
Chetan D Lodaya
Champshi M Shah
:
Appellants
VS
Commissioner of Central Excise & Customs, Nashik
:
Respondent
Appearance
Shri. R.V. Shetty, Advocate for the Appellants
Shri. V.K. Shastri, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 19/2/2016
Date of decision: /2016
ORDER NO.
Per : Ramesh Nair
These three appeals are directed against Order-in- Appeal No. AKP/26 to 28/NSK/2010 dated 27/1/2010 passed by the Commissioner(Appeals) of Central Excise & Customs, Nasik whereby Ld. Commissioner(Appeals) rejected appeals of the appellants and upheld the Order-in-Original in toto.
2. The brief facts of the case are that appellants are engaged in the manufacture of M.S. Ingots falling under Chapter Heading No. 72 of the Central Excise Tariff Act, 1985. On the basis of an information received from the Dy. Commissioner, Central Excise, Mulund Division, Mumbai-III Commissionerate that two dealers situated in his jurisdiction namely M/s. Simandhar Enterprises & M/s. Simandhar Steelmovers(I) Pvt Ltd having their common godown at Gala No. 2, Dal Mill Compound, Purna Village, Bhivandi were on passing the fraudulent Cenvat credit to the various manufacturers including the present appellant i.e. M/s. New Bombay Ispat Udyog Pvt. Ltd.
3. The department has made out this case on following evidences:
(a) The preventive party of Central Excise, Nashik, have fully relied on investigation which was undertaken by Mumbai-III Commissionerate. The have also relied on the letter dated 12/2/2004 and 12/1/2005 received by Mumbai-III Commissionerate from Sales Tax Authorities of Gujarat State.
(b) Both the registered dealers had issued cenvatable dealers invoices in respect of MS Scrap on the strength of purchase invoices of various industries located at Alang, Gujarat without receiving material physically. The verification of purchase invoices revealed that the four consignors of Alang, Gujarat from whom materials are shown to have been received by these two registered dealers, have closed down manufacturing activity since long and therefore purchase invoices issued by these four consignors were found not to be genuine. The further verification revealed that some of the invoices issue by ship breakers of Alang, against which these two registered dealers were issuing the cenvatable invoices to the manufacturers including appellants were not genuine.
(c) There was no physical movement of the goods from the suppliers at Alang to the said dealers in Mumbai. The officers of Mumbai-III commissionerate also visited common godown premises of both the registered dealers and drew the panchanama which confirmed that there was no physical movement of the goods from the supplierss end to these dealers and that meager quantity of 9 tones of Iron & Steel Scrap was available. Shri. Hitesh Shah, Director of M/s. Simandhar Steelmovers(I) Pvt Ltd and Proprietor of M/s. Simandhar Enterprises in his statement had categorically stated that each and every consignment of scrap sent by the suppliers, was first received and unloaded in their godown and were dispatched at later date to the customers. The enquiries carried out by Mumbai-III Commissionerate with Gujarat Sales Tax Authority revealed that no consignment of iron and steel scrap addressed to both the dealers had crossed the sales tax naka situated at Gujarat border during the years 2000-01, 2001-02, 2002-03& 2003-04 as per sales tax records. This implies that no material in question had been received physically by both the dealers from Gujarat to their godown at Bhivandi. Hence, subsequent delivery of the any consignment under cenvatable invoices, to any customers including appellant situated in Maharashtra was not possible.
(d) Some of the vehicle numbers as indicated in the invoice issued by Simandhar, are fictitious as they are either not capable of carrying the quantity mentioned in the invoice or they are tankers or two wheelers or three wheelers. The department has relied upon the report given by R.T.O. Further investigations were made with some of the vehicle owners. These vehicle owners in their statements confirmed that their vehicles were not used for transportation of iron and steel scrap-obtained from ship breaking from Gujarat to godown in Mumbai. A large number of summons issued to various vehicle owners, transporters whose trucks were said to have used to transport the scrap to the appellant, were returned by the postal authorities with the remark left/ not known.
(e) M/s. Simandar Enterprises and M/s. Simander Steelmovers (I) Pvt Ltd were issuing parallel invoices to different parties and with same serial numbers of invoices issued to the appellants based on the which credit was taken by the appellant. The details of invoices issued by the dealers were not appearing in their RG 23 D register which was maintained by the said dealers.
4. In view of the above corroborative evidences department issued show cause notice dated 25/2/2008 which in turn adjudicated. The adjudicating authority vide Order-in-Original dated 8/4/2009 ordered recovery of Cenvat credit amounting to Rs. 13,53,060/- from M/s. New Bombay Ispat Udyog Pvt Ltd and also ordered for recovery of interest, penalty was also imposed. The adjudicating authority further imposed personal penalty of Rs. 50,000/- each on Shri. Champshi M. Shah, Director , Shri. Chetan Damji Lodaya, Director and Shri. Hitesh Shah, Director, M/s. Simandhar Steelmovers (I) Pvt Ltd and penalty of Rs. 50,000/- on M/s. Simandhar Steelmovers (I) Pvt Ltd. Aggrieved by the Order-in-Original, appellants namely (i) New Bombay Ispat Udyog Pvt. Ltd (ii) Chetan D Lodaya (iii) Champshi M Shah filed appeals before the Commissioner(Appeals) who rejected all three appeals of the appellants therefore the appellants are before me.
5. Shri. R.V. Shetty, Ld. Counsel for the appellant made various arguments and written submissions. He mainly harped that the adjudicating authority did not allow cross examination of witnesses and did not provide certain evidentiary document, thus violated the principles of natural justice.
6. On the other hand, Shri. V.K. Shastri, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.
7. I have carefully considered the submissions made by both sides and perused the record.
8. I find that this is a case of fraudulent Cenvat credit availed on the invoices issued by the dealer namely M/s. Simandhar Enterprises & M/s. Simandhar Steelmovers(I) Pvt Ltd. On the identical facts and under same investigation in many other cases, demands were confirmed. On comparison with these cases disposed of by this Tribunal i.e. Mahindra Ugine Steel Co. Ltd Vs. CCE, Raigad[Final Order No.A/2010-2014/15/EB dated 14/5/2015] and M/S Vipras Castings Ltd Vs Commissioner Of Central Excise, Raigad [2015-TIOL-1454-CESTAT-MUM], the facts, investigation and modus operandi of the appellants as well as the so called dealer M/s. Simandhar Enterprises & M/s. Simandhar Steelmovers(I) Pvt Ltd. are same therefore the most of the material evidences are common. This case also can be decided only on the basis of decisions in above referred cases as no much discussion is warranted as all the evidences which are almost common in all cases cited above as well as in present case which have been gone into and observations were given by the division benches in the said decisions. In all above decisions important fact has been established that all the invoices issued by M/s. Simandhar Enterprises & M/s. Simandhar Steelmovers(I) Pvt Ltd. are fake and without receipt and supply of the material. Thus M/s. Simandhar Enterprises & M/s. Simandhar Steelmovers(I) Pvt Ltd have passed an fraudulent Cenvat credit amongst others to the appellant company. Therefore following the decisions of this Tribunal in the cases of Mahindra Ugine Steel Co. Ltd (supra) and M/S Vipras Castings Ltd (supra), the impugned order sustains.
9. As regard the submission of the Ld. Counsel regarding non observance of principles of nature justice by the adjudicating authority, I find that all the common evidences have been tested by this Tribunal in other cases and arrived to a conclusion that all the invoices issued by M/s. Simandhar Enterprises & M/s. Simandhar Steelmovers(I) Pvt Ltd are fake and without receipt and supply of goods then the plea of the Ld. Counsel has no meaning and will not be of any help of the appellant. In view of the above observations, I uphold the impugned order. Appeals are dismissed.
(Order pronounced in court on__________) Ramesh Nair Member (Judicial) sk 7 E/610 to 612/10