Custom, Excise & Service Tax Tribunal
M/S Aarti Steels Ltd vs Cce, Ludhiana on 22 September, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, NEW DELHI COURT NO. II Excise Appeal No. 4024 of 2004 (Arising out of Order-in-Appeal No. 404-406/CE/APPL/LDH/2004 dated 28.5.2004 passed by the Commissioner of Central Excise (Appeals), Ludhiana) M/s Aarti Steels Ltd. Appellant Vs. CCE, Ludhiana Respondent
Excise Appeal No. 4563-69 of 2004 (Arising out of Order-in-Appeal No. 375-381/CE/Appl/Ldh/2004 dated 25.5.04 passed by the Commissioner of Central Excise (Appeals), Ludhiana) M/s Baldev Raj Ram Murthi Appellants Vs. CCE, Ludhiana Respondent Excise Appeal No. 4764 of 2004 (Arising out of Order-in-Appeal No. 408-418/CE/APPL/LDH/2004 dated 27.5.04 passed by the Commissioner (Appeals), Central Excise, Ludhiana) M/s Punjab Bearing Inds. Ltd. Appellant Vs. CCE, Ludhiana Respondent Excise Appeal No. 4420-4430 of 2004 (Arising out of Order-in-Appeal No. 408-418/CE/Appl/Lud/04 dated 27.5.04 passed by the Commissioner (Appeals), Central Excise, Ludhiana) M/s Suraj Udyog Ltd. Appellants M/s National Industries M/s Nucon Switchgear Pvt. Ltd.
M/s Osha Tools Pvt. Ltd.
M/s Nucon Power Controls Pvt. Ltd.
M/s Vikas Engineers M/s Carsil Auto Products Pvt. Ltd.
M/s Moonlight Auto Ltd.
M/s Sheet Components Pvt. Ltd.
M/s Emkay Industries M/s Stelco Strips Ltd.
Vs.
CCE, Ludhiana Respondent
Excise Appeal No. 4433-4435 & 4738 of 2004
(Arising out of common Order-in-Appeal No.430-434/CE/CHD/04 dated 14.6.04 passed by the Commissioner (Appeals), Central Excise, Chandigarh) CCE, Chandigarh Appellant Vs. M/s S.A. Industries Respondent M/s New Age Metal Forming (P) Ltd.
M/s Maxwell Controls M/s Baldev Raj Ram Murthi Excise Appeal No. 1757 of 2005 (Arising out of Order-in-Appeal No. 688-700/CE/Appeal/Ldh/04 dated 7.1.05 passed by the Commissioner (Appeals), Central Excise, Ludhiana) M/s Majestic Industries Ltd. Appellant Vs. CCE. Ludhiana Respondent Excise Appeal No. 2417 of 2005 (Arising out of Order-in-Appeal No. 272-CE/Appl/Ldh/05 dt. 17.5.05 passed by the Commissioner of Central Excise (Appeals), Ludhiana) M/s Aarti Steels Ltd. Appellant Vs. CCE, Ludhiana Respondent Excise Appeal No. 876-877 of 2005 (Arising out of Order-in-Appeal No. 632/CE/Appl/Ldh/2004 dated 30.11.04 passed by Commissioner (Appeals), Central Excise, Ludhiana) Majestic Industries Ltd. Appellant Vs. CCE, Ludhiana Respondent Excise Appeal No. 1314-1322 & 1329-1331 of 2005 (Arising out of common Order-in-Appeal No. 688-700/CE/Appeal/Ldh/04 dated 31.12.2004 passed by the Commissioner (Appeals), Central Excise, Ludhiana) Majestic Industries Ltd. Appellant Vs. CCE, Ludhiana Respondent Excise Appeal No. 1578-1579 of 2005 (Arising out of Order-in-Appeal No.61-62 & 45-47/CE/Appeal/Jal/2004 & 05 dated 23.2.05 & 31.1.05 passed by the Commissioner (Appeals), Central Excise, Jalandhar) Majestic Industries Ltd. Appellant Vs. CCE, Jalandhar Respondent Excise Appeal No. 2806-2808 of 2005 (Arising out of Order-in-Appeal No. 273, 290, 253/CE/APPL/LDH/05 dated 17.5.05 dated 26.5.05, 16.5.05 passed by the Commissioner (Appeals), Central Excise, Ludhiana) M/s Suraj Udyog Appellant M/s Stelco Strips Ltd.
M/s Emkay Industries Vs. CCE, Ludhiana Respondent Excise Appeal No. 2827-2828 of 2005
(Arising out of Order-in-Appeal No. 248, 257/CE/APPL/LDH/05 dated 28.4.05, 16.5.05 passed by the Commissioner (Appeals), Central Excise, Ludhiana) M/s Moonlight Auto Ltd. Appellant M/s Sheet Components P. Ltd.
Vs. CCE, Ludhiana Respondent For approval and signature HONBLE MR. S.S. KANG, VICE PRESIDENT 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 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 Departmental authorities.
Appearance:
Shri K.K. Anand, & Sh. A.S. Gill, Advocates - For appellant Shri M.M. Singh, DR - For respondent CORAM:
HONBLE MR. S.S. KANG, VICE PRESIDENT HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL) Date of Hearing: 22.9.2008 Order No..dated.
Per S.S. Kang:
Common issue is involved in these appeals, therefore, are being taken up together.
2. The appeals are filed against the impugned order whereby credit was denied and penalties were imposed on the ground that the vehicle numbers mentioned in the invoices are not transport vehicles, the transporter of the vehicles denied the transportation of goods, dealers who issued the invoices are not having godown/registered premises.
3. The contention of the appellant is that in these cases the duty paid inputs were received in the factory and were used in the manufacture of final product which was cleared on payment of duty. In such cases the credit cannot be denied on the ground that vehicle numbers mentioned in the invoice is not of non-transport vehicle or the transporter has denied the transportation of goods or on other grounds. The other evidence has to be taken into consideration.
4. The Revenue relied upon the decision of the Tribunal in the case of M/s Rajeev Alloys Ltd. Vs. CCE vide Final Order dated 3.9.2008 in Appeal No. 2434/2006. The contention of the Revenue is that once it has been established that the vehicle numbers mentioned in the invoices are not of trucks or the transporter has denied the transportation of goods or the dealer has no godown than the burden is on the assessee who availed the credit to show by producing evidence that the duty paid inputs were actually received in the factory of production and used in the manufacture of dutiable goods. In these cases, as the Revenue by producing evidence of transporter and enquiries from transport office established that the vehicle numbers mentioned in the invoices are not of trucks or the transportation of goods is denied, therefore, the credit was rightly denied. In other cases revenue during investigation found that the dealers who issued the invoices had not received the inputs.
4. We find that the Tribunal in the case of M/s Rajeev Alloys (supra) held that onus initially lies on the department to show that inputs are not received in the factory of production and credit has been wrongly taken but having established that the vehicle in question were incapable of transporting large quantity mentioned in the invoices. The onus shifts to the assessee to prove that goods were duly received by them and used in the manufacture of excisable goods. In view of the above decision, we find that as the initial burden that goods had not been received by the appellant has been discharged by the Revenue, therefore, the onus is on the appellant to prove that the duty paid goods were actually received in the factory and used in the excisable goods. In these circumstances, the impugned orders are set aside and the matter is remanded to the adjudicating authority to decide afresh in view of the decision of the Tribunal in the case of M/s Rajeev Alloys (supra). The appeals are disposed of by way of remand.
(Operative part of the order pronounced in open Court) (S.S. KANG) VICE PRESIDENT (RAKESH KUMAR) MEMBER (TECHNICAL) RM