Custom, Excise & Service Tax Tribunal
M/S. A.P. Forgings Pvt. Ltd vs C.C.E. Delhi Iv on 10 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R.K. Puram, New Delhi 110 066. Date of Hearing 10.7.2013 No.E/3799/2010 [Arising out of Order-in-Appeal No.140/CE/Appl/2010, dated 19.08.2010 passed by the C.C.E. (Appeals), Faridabad] For Approval & Signature : Honble Mr. Sahab 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? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether 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. A.P. Forgings Pvt. Ltd. Appellant Vs. C.C.E. Delhi IV Respondent
Appearance Shri T.R. Rustagi - for the appellant Shri RK Verma, DR - for the respondent CORAM: Honble Mr. Sahab Singh, Member (Technical) Final Order No. 56987 dated 10.7.2013 Per Honble Mr. Sahab Singh :
This appeal is filed by M/s. A.P. Forgings Pvt. Ltd. against the order-in-appeal No.140/Appeal/DLS/2010 dated 19 August, 2010.
2. The facts of the case are that on the basis of the investigation taken up by the Directorate of General of Central Excise Intelligence against M/s. Bhagwati Trading Co., it was revealed that M/s. Bhagwati Trading Co. being the dealer had passed on fraudulent CENVAT credit to A.P. Forgings Pvt. Ltd. (Appellants) on the basis of invoices without sending the inputs described therein. During the period March 2004 to September 2004, the appellants availed Rs.4,98,130/- as CENVAT credit through 12 invoices issued by the said dealer. The view of the Department is that since the goods were not received by the appellants, they were not eligible for CENVAT credit and accordingly the Show Cause Notice dated 02 February, 2009 was issued to the appellants and after the issuance of the notice, the appellants deposited the entire amount through RG23A. The case was adjudicated by the Assistant Commissioner by order No.11/AC/Div.V/09-10, dated 29 January, 2010, confirming the demand of Rs.4,98,130/- along with the interest and equal amount of penalty was imposed on them. The appellant preferred an appeal before the Commission (Appeals), who vide the impugned order rejected their appeal and the appellant filed this appeal before this Tribunal.
3. The Ld. Advocate appeared for the appellant has submitted that the Show Cause Notice was issued to them on the basis of the investigation taken up against M/s. Bhagwati Trading Co. and on going through the Show Cause Notice it is clear that the appellant has received the invoices from M/s. Bhagwati Trading Co. and credit was taken on the basis of invoices. In Show Cause Notice it was mentioned that no goods were received by the appellant from the dealer. There is no admission of mistake by the appellant in any statement or letter. On the issuance of Show Cause Notice, the appellants have debited the amount demanded in the Notice under protest. He, therefore, submits that on the basis of the Show Cause Notice, there is no case against the appellants and both the lower authorities travelled beyond the Show Cause Notice confirming the duty and penalty.
4. The Ld. Departmental Representative submitted that the investigations were taken up against M/s. Bhagwati Trading Co, and other assessees and racket was detected regarding availing of CENVAT credit on the basis of the fake invoices without receipt of any goods described therein. In the investigation it was found that many manufacturers have availed the CENVAT credit on the basis of invoices issued by M/s. Bhagwati Trading Co. without receipt of goods. The present appellant is one of the manufacturers. He also submits that on the issuance of Show Cause Notice, the appellant has already deposited the entire amount and they have not contested the demand on any substantial issue in the appeal. He, therefore, submits that both the lower authorities had rightly confirmed the demand.
5. After hearing both the sides, I find that the lower authority in its adjudication order had given the finding as under:-
The party had admitted that during the period 2003-04 & 2004-05 they have received invoices from M/s. Bhagwati trading Co. and on being asked about transport documents and other records evidencing receipt of goods, he stated that such records are not available with them. He admitted their mistake and voluntarily paid an amount of Rs.1,50,000/- aleaready deposited vide RG23A Part II Entry No.15 dt. 30.01.09 and further the party have debited an amount of Rs.2,48,130/- vide RG23A Part-II Entry no.12 dt. 24.02.09 in lieu of payment of Central Excise duty/ CENVAT Credit availed on the invoices received from M/s. Bhagawati Trading Co. and further undertaken to pay the rest of amount shortly along with interest and extended co-operation in the further investigation. As authorise signatory of the assessee has already admitted their mistake and voluntarily deposited Rs.1,50,000/- already deposited vide RG23A Part-II Entry No.02 dt. 09.10.08 & Rs.1,00,000/- vide RG23A Part-II Entry no.15 dt. 30.01.09 and further the party have debited an amount of Rs.2,48,130/- vide RG23A Part-II Entry no.12 dt 24.02.09 against wrongly availed CENVAT Credit by them.
From the above findings, it is noticed that the originating authority observed that the appellant had already admitted their mistake regarding the non-receipt of the goods. I find that there is no such document showing any such admission on the part of the appellants. I, therefore, find that the observations made by the originating authority are not supported by any documents available on record. Therefore, the matter is remanded back to the originating authority for passing a fresh order after giving an opportunity of hearing to the appellants. Order-in-Appeal is set aside and the matter is remanded to the originating authority for fresh demand.
6. Appeal is disposed of by way of remand.
(Dictated & pronounced in open Court) (Sahab Singh) Member (Technical) SSK