Custom, Excise & Service Tax Tribunal
C.C.E. Chandigarh vs M/S Nu-Line Polymers Pvt. Ltd on 19 February, 2015
THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. III Appeal No. E/1919/2005-EX(DB) [Arising out of Order-in-Appeal No. 53/CE/2004 dated 25.05.2004 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Chandigarh]. For approval and signature: Hon'ble Shri Rakesh Kumar, Member (Technical) Hon'ble Shri Ashok Jindal, Member (Judicial) 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? C.C.E. Chandigarh .Appellants Vs. M/s Nu-Line Polymers Pvt. Ltd. .Respondent
Appearance:
Shri Jay Kumar, Advocate for the Respondent Shri R.K. Grover, DR for the Appellants CORAM:
Hon'ble Shri Rakesh Kumar, Member (Technical) Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing: 19.02.2015 FINAL ORDER NO. 50595/2015 EX (DB) Per Rakesh Kumar:
The facts leading to filing of this appeal by the Revenue are in brief as under.
2. The respondents are manufacture of PVC and HDPE pipes in their factory located at Parwanoo. The period of dispute in this appeal is from 1998-1999 to 2000-2001. During this period they were receiving raw material through M/s. Karan & Co., Parwanoo, a consignment agent of M/s. IPCL. All the consignments of plastic materials have been received from M/s. IPCL which at that time was a Centra Government Public Sector Undertaking. The appellant took Cenvat Credit of Rs.85,84,952/- on the basis of the suppliers invoices. When any supplier of goods from outside the state of Himachal Pradesh supplies any goods to some person in that state, the supplier is required to submit a form ST-XXXVI-A at the barrier, a copy of which is also required to be kept by the person receiving the consignment. The person receiving the consignment is also required to maintain a register containing details of the consignment received in the form ST-XXXVI. The officers of DGCEI conducted enquiry in respect of the consignments received by the respondent and found that the consignment of plastic renewals received from M/s. IPCL in ST-XXVI-A form were not figuring in any statutory records maintained by the respondent as the respondent were not maintaining any record except for a private register containing details of the consignments. It is on this basis that the department issued the show cause notice to the respondent for recovery of alledgly wrongly taken Cenvat Credit of Rs.85,84,952/- along with interest and also imposition of penalty on them under provisions of Central Excise Rules 1944. The show cause notice was adjudicated by the Commissioner vide order dated 05.5.2004 by which the proceedings initiated by the Show Cause Notice dated 09.07.2003 were dropped, on the ground that details of all the consignments received by the respondent from M/s. IPCL during the period of dispute under ST-XXVI-A Forms were found entered in the register maintained by them. Against this order of the Commissioner the Revenue has filed this appeal.
3. Earlier when this matter has been heard by the Tribunal on 12.05.2010 the Tribunal had allowed the revenues appeal, through it was the ex party order as on that date, none representing the respondent had appeared.
4. The respondent filed an appeal before Honble High court of Himachal Pradesh and Honble High Court vide the order dated 30.10.2014 has remanded the matter back to the Tribunal for fresh decision after hearing the respondent.
5. Heard both the sides.
6. Shri R K Grover Ld. DR, asssailed the impugned order by reiterating the grounds of appeal and pleaded that as discussed in para 8.1 of the show cause notice and as admitted by M/s. Karan and company, the consignment agent of M/s. IPCL in Parwanoo, ST-XXVI register is a statutory record prescribed by the Excise And Sales Tax Department of Himachal Pradesh which is required to be maintained by all the registered dealers for receiving any taxable goods from outside the state of Himachal Pradesh, that though the respondent claim to have received the consignments of plastic granula from outside this state under ST-XXVI-A forms, they have not maintained ST-XXVI register containing details of these consignments, that the enquiry had also been made at the check post and it has been found that ST-XXVI-A forms had not been entered in the register maintained in the check post and that in view of this, the respondents claim of having received the consignments of plastic granula from IPCC in respect of which MODVAT credit has been taken, is not credible. He therefore pleaded that impugned order is not correct.
7. Shri Jay Kumar, Advocate, the Ld. Counsel for the respondent, pleaded that respondent had received bulk of the consignments of plastic granuels through M/s. IPCL consignments agent and only the few consignment have been received directly, that all these consignments have been received under ST-XXVI-A forms, the copies of which have been maintained by M/s. Karan & Co. as well by the respondent, that this fact is recorded in the summons issued to M/s. Karan and Co. and also in para 21 of the impugned order, that in para 21 of the impugned order the Commissioner has given a finding that the invoice register maintained by M/s. Karan and Co. contains details of the consignments received by them from M/s. IPCL and also additional details like manufacturers invoice no. and page no., of RG 23D Register, etc., that in view of this, it cannot be concluded that no consignments have been received, that all the ST-XXVI-A forms under which the consignments of plastic granula had been received from M/s. IPCL are entered in the register maintained at the border check post, that ST-XXVI-A forms are to be maintained by the dealer receiving the goods from outside the state and M/s. Karan & Co. / respondent who had received the consignments had kept copies of ST-XXVI-A forms and therefore, from the non entry of these forms at the sales tax check post at the inter state border, it cannot be concluded that those consignment have not been received. He also cited the Tribunals judgment in the case of Himalayan Pipe Industries Vs. C.C.E. Chandigarh reported in 2013 (293) E.L.T. 739 (TRI Del) and also in the case of C.C.E. Chandigarh Vs. Himalayan Pipe Industries reported in 2014 (299) E.L.T. 491 (Tri-Del) wherein on the basis of identical facts cases alleging non receipt of the material and taking MODVAT Credit on bogus invoices have been booked against manufacturers and the Tribunal in those case held that merely on the basis of non maintenance of the ST-XXVI-A register or non entry of ST-XXVI A Form at the sales tax check post at the inter state border, the department cannot conclude that the goods covered under ST-XXVI-A forms have not been received.
8. We have considered submissions from both the sides and perused the records.
9. Undisputed facts are that the goods in respect of which MODVAT credit in question has been taken had been received from outside the state under ST-XXVI-A forms and respondent and consignment agent M/s. Karan and Co. were having copies of all these ST-XXVI-A forms. The only basis of the departments allegation of non receipt of goods and taking Credit on the basis of alleged bogus invoices is that respondent were not maintaining ST-XXVI register prescribed under the Sales Tax Act of the Himachal Pradesh and some of these forms were not found entered in the register a interstate barrier check post. In terms of the provisions of the Himachal Pradesh Sales Tax it is the dealer receiving the goods from outside state who is required to maintain copies of ST-XXVI-A forms under which goods have been received and is required to maintain the record of such consignments received from the state in ST-XXVI in register. Merely because of not maintaining ST-XXVI register when the details of these consignments were found entered in the invoice register maintained by the respondent and as merely because some of these forms were not found entered in the register maintained at the check post, it cannot be concluded that the respondent have not received any goods. We find that same view has been taken by the Tribunal in the case of Himalayan Pipe Industries (Supra) and in the case of C.C.E. Chandigarh Vs. Himalayan Pipe Industries (Supra).
10. In view of the above discussions, we do not find any merit in this appeal. Same is dismissed.
(Dictated and pronounced in the open court)
(Ashok Jindal) (Rakesh Kumar) Member (Judicial) Member (Technical)
Bhanu
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E/1919/2005-EX(DB)