Custom, Excise & Service Tax Tribunal
M/S Hans Steel Rolling Mills vs Cce, Chandigarh on 20 June, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 COURT NO.1 Appeal No.E/1958/2011- (SM) (Arising out of the Order-in-Appeal No. 90/CE/Appl/LDH-I/2011 dated 30.03.2011 passed by the CCE (Appeals), Chandigarh) Date of Hearing/Decision: 20.06.16 For Approval & signature: Honble Mr.Ashok Jindal, Member (Judicial) 1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes M/s Hans Steel Rolling Mills Appellant Vs. CCE, Chandigarh Respondent
Appearance None , Advocate- for the appellant Shri, G.M.Sharma, A.R.- for the respondent CORAM: Honble Mr.Ashok Jindal, Member (Judicial) FINAL ORDER NO: 60364/2016 Per Ashok Jindal:
The appellant has filed this appeal against the impugned order wherein cenvat credit on inputs have been denied to the appellant on the premise that the dealer M/s S.k. Garg & Sons who has supplied the goods to the appellant is non-existence and he has merely issued invoice not the goods.
2. The facts of the case are that appellants procured goods from one M/s S.K.Garg & Sons who is a first stage dealer who got registered with the department w.e.f. 05.12.2003. An investigation was conducted at the premises of M/s S.K. Garg & Sons on 14.08.2007, it was found that the premises was locked and godown is also non-existence. Enquiries were made with the landlord who stated that M/s S.K. Garg & Sons has vacated the premises in 2003 itself and thereafter he never let out the premises to anybody. On the basis of investigation and on the basis of statement of M/s S.K. Garg & Sons, the registration of M/s S.K. Garg & Sons was cancelled on 21.07.2008 retrospectively. Further, the investigation revealed that the appellant before me have procured goods from M/s S.K. Garg & Sons and availed cenvat credit on the goods purchased from M/s S.K. Garg & Sons. As M/s S.K. Garg & Sons found non existence, therefore it was alleged against the appellant that they have received the invoices but not the goods. In these set of facts, a show cause notice was issued to the appellant to deny cenvat credit on inputs procured on the strength of the invoices issued by M/s S.K. Garg & Sons. Consequently, duty was proposes to be demanded alongwith interest and penalty was sought to be imposed. The matter was adjudicated, cenvat credit was denied consequently duty was demanded alongwith interest and equal amount of penalty. Aggrieved from the said order, the appellant is before me.
3. The appellant filed the written submissions stating that there is no inculpatory statement of the appellant. In fact, the appellant has stated that they have physically received the goods against the invoices and said goods have been used in manufacture of the final goods. Therefore, cenvat credit cannot be denied. It is also submitted that no investigation was conducted with the transporter of the goods whether they have transported the goods to the appellant and no investigation was conducted at the end of the manufacture suppliers of the goods. In that circumstances, cenvat credit cannot be denied. It is also submitted that M/s S.K. Garg & Sons filed ER-1 returns with the department and the same have been accepted by them in that circumstances also cenvat credit cannot be denied. In support of their contention ld. Counsel also relied on the decision of CCE, Ludhiana Vs. Dhawan Steel Industries- 2015 (324) ELT 169 ( Tri. Del.).
4. On the other hand, Ld. DR opposes the contentions of the appellant and submits that in this case the Preventive Officers of the Central Excise department visited the premises of M/s S.K. garg & Sons on 13.08.2007 and it was found that M/s S.K. Garg & Sons is non-existence. The investigation was started and later on it was revealed that as M/s S.K. Garg & Sons is engaged in issuing of the fake cenvatable invoices for availment of the cenvat credit by the appellants, in fact, no godown was in existence where the goods to be stored. He further submitted that the invoices in question have been issued by the manufacturer/supplier located in Raipur and on the same date, M/s S.K. Garg & Sons issued invoices to the appellant, therefore, it is not possible that the goods started from Raipur have been received by the appellant on the same day, therefore, the appellant has not received the same goods.
5. Heard the parties and considered the submissions.
6. I find that in the matter in hand no investigation conducted at the end of manufacturer/supplier or the transporter to reveal the truth whether manufacturer/supplier has supplied the goods in question to M/s S.K. Garg & Sons or the transporter has transported the goods to the premises of the appellants which is vital evidence to reveal the truth. Further, M/s S.K. Garg & Sons was registered dealer during the impugned period and all the ER-1 returns were filed by M/s S.K. Garg & Sons were accepted by the department. Therefore, in the absence of any corroborative evidence to show that the appellants have not received the goods, it cannot be alleged against the appellant that they have received the invoices and not the goods merely on the ground that there was not storage facility with the dealer specifically when the landlord made a statement that the godown was let out to the dealer. In this case also the contention of the Ld. AR is not acceptable as no statement of the transporters has been recorded, further, find that in the case of M/s Dhawan Steel Industries (Supra) this tribunal has examined the issue wherein M/s S.K. Garg & Sons was the dealer who supplied the goods to M/s Dhawan Steel Industries and case has been booked against M/s Dhawan Steel Industries that they have not received the goods from M/s S.K. Garg & Sons. In that circumstances, cenvat credit was sought to be denied to M/s Dhawan Steel Industries but this Tribunal after examining the issue held as under:-
4. After considering the submissions made by learned AR and on perusal of the record, I find that the invoices issued by M/s S.K. Garg and Sons giving details of manufactures as well as manufacturer supplier of the goods. No investigation was conducted at the end of manufacturer supplier as well as transporter of the goods to reveal the truth. The case has been made against the respondent on the presumption that supplier-dealer is not existing firm therefore, there was only paper transaction. Cases cannot be booked merely on the presumption and assumption; there should be corroborative evidence to prove the allegations. In this case, allegation has not been supported with tangible evidence. Therefore, learned commissioner (Appeals) has rightly set aside the proceedings against the respondents. In these circumstances, I do not find any infirmity in the impugned order and same is uphel. Appeal filed by the Revenue is dismissed.
7. Therefore, relying on the precedent decision of the Tribunal in the case of M/s Dhawan Steel Industries (Supra) and M/s Jain Steel Tubes and other vide order No.96-102/16 CHD dated 11.02.16 as discussed above, I hold that in the absence of any investigation at the end of manufacturer/supplier or the transporter, the cenvat credit cannot be denied to the appellant. Therefore, impugned order is set aside, the appeal is allowed with consequential relief, if any.
Ashok Jindal Member Judicial rt 1