Custom, Excise & Service Tax Tribunal
Shree Parvati Metals vs Cce-Jaipur-I on 2 February, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL R.K. PURAM, WEST BLOCK NO. 2, NEW DELHI-110066 COURT NO IV Date of hearing: 02/02/2016 Appeal No. E/3744/2010-EX[SM] [Arising out of order-in-appeal No. 384 (DKV) CE/JPR-1/2010 dated 26.08.2010 passed by Commissioner (Appeals) of Central Excise, Jaipur-] For approval and Signature: Honble Shri R.K. Singh, Member (Technical) 1. Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would 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 Department Authorities? Shree Parvati Metals Appellant Vs. CCE-Jaipur-I Respondent
Appearance: Shri Naveen Mallick, Advocate for the appellant
Shri Bhaivan Bhatnagar, AR for the respondent.
Final Order No. 50215/2016
Coram: Honble Shri R.K. Singh, Member (Technical)
Per: R.K. Singh
Appeal has been filed against order-in-appeal dated 26.08.2010 which upheld the order-in-original dated 27.10.2009 in terms of which CENVAT Credit of Rs. 10,27,545/- was ordered to be covered along with interest, and equal mandatory penalty was imposed with an option of reduced (25%) mandatory penalty. The facts of the case are that during the investigation commenced on the basis of information that the appellant was taking CENVAT Credit on the HR coils/sheets of thickness below 10mm only on the basis of invoices without receiving goods, it was revealed that the appellant, a manufacturer, did not use HR coils/plates of thickness below 10mm. The statement of Shri Naresh Singh, Foreman was recorded on 7/10/2006 wherein he categorically admitted that the appellant never received coils /plates of thickness below 10mm. The statement of the proprietor of the appellant Shri Surender Chauhan was also recorded on 7/10/2006 wherein he agreed with the statement of Shri Naresh Singh that the appellant never received HR coils/plates below 10mm. The proprietor reiterated the same in the second statement recorded on 2/4/2008. Accordingly, the impugned CENVAT Credit taken by the appellant based on invoices showing receipt of HR Plates, sheets/coils of thickness below 10mm was denied and penalty imposed as above.
2. Ld. Advocate for the appellant pleads that the cross-examination of shri Naresh Singh was denied and that vitiates the proceedings and pleaded that the case should be remanded for de-novo adjudication after cross-examination of Shri Naresh Singh. He also stated that the Chartered Engineers Certificate dated 12/08/2008 categorically states that the appellant uses coil/plate from 2mm thickness to 100mm thickness and this Chartered Engineer Certificate has been totally ignored without even his cross-examination. As regards not finding stock of coils/plates of thickness below 10mm, Ld. Advocate stated that the appellant had utilized the entire stock and hence no stock was found in the factory.
3. Ld. DR on the other hand stated that there is clear admission of offence by the proprietor and demand has been computed only in respect of such coils/plates which were shown in the invoices as below 10mm of thickness. The certificate of chartered engineer was given on 12/8/2008 while demand pertains to 2005-2006 and 2006-2007. He stated that cross-examination of Shri Naresh Singh is not permissible because he is an employee of the proprietor.
4. I have considered the submissions from both sides and perused the records.
5. As regards the cross-examination of Shri Naresh Singh, Foreman is concerned, it is settled law that if the statement of the person is relied upon and the appellant seeks cross-examination of that person, it is to be allowed if not allowing cross-examination will cause prejudice to the appellant (Supreme Court judgments in the case of Dharampal Satyapal Ltd. 2015 (8) SC 519 refers). As the statement of Shri Naresh Singh is relied upon against the appellant not allowing his cross-examination does cause prejudice to the appellant and therefore in the absence of his cross-examination, Shri Naresh Singhs statement cannot be used as evidence against the appellant (Refer SC Judgment in the case of CCE Nagpur Vs. Ballarpur Industries 2007 (215) ELT 489 (SC). However, I find that the proprietor himself had categorically admitted in his statement dated 7/10/2006 that he never received any coil or plates of thickness below 10mm in his factory. There was no retraction of the statement nor any allegation that the same was obtained under duress. Not only that in his subsequent statement recorded much later on 2/4/2008, he reiterated that coils of thickens below 10mm were never received in his factory. The second statement also was never retracted. Thus proprietors statements are of full evidentiary value. His sstatements fully and decisively establish the alleged offence. The Chartered Engineer Certificate produced by the appellant merely states as under:
This is to certify that M/s. Shree Parvati Metals, E-6, RIICO Industrial Area, Bhiwadi is a registered manufactures of different type of machines such as Hydraulic Presses. Mechanical machines & other in which they use various type of Principle Raw materials As CR Sheets, HR Sheets, M.S. Sheets of various thickness i.e. 2mm to 100mm. I have visited their factory premises and saw all the process. The verification of raw material the Bills and Photographs are attached with the certificate. Place: Bhiwadi Date: 12.08.2008 Signature & Seal of Chartered Engineer Name: A.K. Khanna Registration NO.: M-10672/91995 Registered with: Institute of Engineers (India) The certificate is dated 12/08/2008 while the period covered in this case is 2005-06 to 2006-2007. The certificate does not certify that the appellant was receiving coil below 10mm during the relevant period.
6. As regards the contention of the Advocate, there is no corroborative evidence other than the statement of the proprietor suffice to say that proprietors statements, voluntary as those are fully and comprehensively cover and sustain the allegation and have full evidentiary value and therefore absence of corroboratory evidence is inconsequential because Revenue does not have to collect evidence beyond what is required to establish the case. In the case of K.I. Pavunny Vs. Astt Collector Cochin 2002-TIOL -7390-SC- CUS LB Supreme Court held that confessional statement, if found voluntarily, can form the sole basis for conviction.
7. In the light of the forgoing, I do not find any such infirmity in the impugned order as to invite appellate intervention. The appeal is dismissed.
(R.K. Singh) Member (Technical) Ritu