Custom, Excise & Service Tax Tribunal
M/S Himalayan Pipe Industries vs Cce, Chandigarh on 1 May, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. III Excise Appeal No. 2612-2613 of 2005-EX[DB] E/2627-2628/2005, E/3533/2005 [Arising out of Order-In-Original No 03/CE/2005 dated 13.05.2005 passed by Commissioner of Central Excise, Jalandahr] For approval and signature: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Rakesh Kumar, Member (Technical) 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 Himalayan Pipe Industries, Appellants M/s. Himalayan Plastics Ltd. B N Verma Bhawani Sharma Vs. CCE, Chandigarh Respondent
And CCE, Chandigarh Appellants Vs. M/s Himalayan Pipe Industries Respondent Appearance:
Shri Joy Kumar, Advocate, for the Appellants Ms. Ranjana Jha, Jt CDR, for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Rakesh Kumar, Member (Technical) Date of Hearing/decision : 01.05.2013 FINAL ORDER NO ./ 56335-56339 /2013-Ex(Br) Per Archana Wadhwa (for the Bench):
All the five appeals are being disposed of by a common order as the issue involved is identical. Four appeals stand filed by the assessee and the appeal filed by the Revenue is against that part of the impugned order of the Commissioner vide which he has dropped the demand.
2. As per facts on record, the appellants are engaged in the manufacture of HDPE pipes and HDPE granules are their raw materials. They were receiving HDPE granules from various manufacturers as also from registered dealers and were availing the benefit of Cenvat credit of duty paid on the same. All the HDPE granules being received by them were duly entered into their RG 23A Part I register and Part II register reflecting the credit.
3. Revenue conducted inquiries at the sales tax department and verified the ST XXVI-A form which are required to be issued by the Sales tax department for crossing the sales tax barrier allowing the entry of the vehicles to Himachal Pradesh, where the appellants factory was located. Inasmuch as all the requisite ST XXVI-A forms, were not supplied by Sales Tax department, Revenue entertained a view that invoices in respect of which such forms could not be supplied by the Sales tax department, the goods were not actually received by the assessee and as such, they are not entitled to avail the credit. Accordingly, the proceedings were initiated proposing confirmation of demand and imposition of penalties culminating into passing of present impugned order. Wherever the assessee could produce ST XXVI-A forms, the Commissioner has dropped the demand against which the Revenue is in appeal.
4. After appreciating the submissions of the both sides, we find that identical cases were made out by the Revenue against a number of units located in Himachal Pradesh. In some cases, the additional form ST XXVI-A issued by Sales Tax department could be produced by the assessees and in some other cases the same could not produced. The matter travelled upto Tribunal and it was held that denial of credit on the basis of ST XXVI-A form issued by Sales Tax Department cannot be on the sole ground of non-production of such forms. Reference in this regard can be made to Tribunals decision in the case of Commissioner of Central Excise, Chandigarh vs. Hitkari Industries Ltd. reported as [2008 (226) ELT 583 (Tri-Del)], the Commissioner of Central Excise, Chandigarh vs. Adhunik Packages P. Ltd. [2008 (224) ELT 114 (Tri-Del)] as also the appellants own case vide Final Order No. 687-699/06 dated 23.8.06. It is further seen that some of the Tribunals order were challenged by the Revenue before High Court of Himachal Pradesh and appeals filed by the Revenue stand rejected vide Order dated 10-.11.09.
The zist of all these decisions is that though the sales tax document may not be extraneous material but in view of the conflicting record having been maintained by the assessee and payment for such receipt of raw materials having been made to the supplier by cheques/ drafts, the sole reliance on such sales tax department, cannot be held to justified. In the present case also, we find that the appellant had taken a categorical stand before the authorities below that the payments for such receipt of raw materials were made by cheque/draft and the Revenue has not made any inquiry from the supplier of the raw materials. It is also seen that appellants having taken a categorical stand of payments having been made by cheque/draft, it was for the Revenue to prove otherwise. They have not even bothered to approach the supplier of the raw materials so as to the find out the correct position. In such a scenario, Revenues sole reliance on the absence of ST XXVI-A forms, as retrieved from the sales tax department is not justified. It is further seen that during the course of adjudication, the appellants could produce some of the ST XXVI-A form, which according to the sales tax department were not available. This fact itself prove the falsity of information retrieved from the sales tax department. In view of the foregoing discussion, we set aside the impugned order confirming demands against the appellants and imposition of penalties upon them and allow all the four appeals with consequential relief.
5. As regards the Revenues appeal, we find that Commissioner has extended the benefit to the assessee on the basis of ST XXVI-A form produced by them during the course of adjudication. Revenues contention is that same do not belong to the virgin raw materials inasmuch as, as per the statement of one Shri Rajender Thakkar, authorized signatory, they were also receiving the recycled HDPE granules. They were getting reprocessed second HDPE granules. The assessees contention is that all the receipts are from virgin HDPE granules manufacturers and such submission cannot be relied upon as documentary evidence produced by the assessee. We agree with the said contention of the assessee. There is no documentary evidence on record to reveal that what was received by the manufacturer is reprocessed granules and not the virgin granules as reflected in the records. We accordingly, reject the revenues appeal.
(Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
( Rakesh Kumar ) Member(Technical)
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