Customs, Excise and Gold Tribunal - Mumbai
Sharda Ispat Ltd. vs Commissioner Of Central Excise, Nagpur on 6 September, 2001
Equivalent citations: 2001(134)ELT63(TRI-MUMBAI)
ORDER
Gowri Shankar, Member(Technical)
1. We do not find it possible to accept the request for adjournment made on the ground that the officer concerned with the matter has suddenly fallen ill. On the hearing of the appeal fixed on 28.6.96, the appellant had asked for adjournment of the hearing of the appeal times. Adjournment was sought of the hearing on 2.1.2000 on the ground that its officer had resigned, and left, and its consultant at Mumbai was not available. Hearing fixed on 14.12.00 was adjourned on the ground raised by the applicant that concerned officer had fallen sick. This was the same reason advanced on 5.2.01. This is the request that is now made. We find it a little difficult to believe that the concerned officer falls sick each time the appeal is fixed by the Tribunal for hearing. We also do not understand why the appellant could not get someone else to attend the hearing. There has been sufficient time for it to arrange to do so. We have read the memorandum of appeal and relevant papers and heard the departmental representative and thereafter reserved the matter for reconsideration.
2. The appellant manufacture inter alia mile steel angles. The department concludes from the scrutiny of the appellant's records that it had, in December 1994, issued invoices showing clearance of these goods each showing the consignor to be Tata Iron and Steel Co. Ltd. (TISCO for short), the consignee to be the appellant itself, and taken modvat credit on the basis of these documents. The department found that various delivery challans of TISCO had been issued. However there was no invoice issued by TISCO. The department therefore issued notice proposing to recover credit on the ground that the invoice on which credit was taken was not a valid duty paying document. Penalty was also proposed. The assessee replied making various submissions. The Commissioner did not accept these submissions and passed the order impugned in this appeal. He denied the credit of Rs.24.35 lakhs and imposed a penalty of Rs.50,000/-. Hence this appeal.
3. The appeal raised contentions which are more or less same which were raised before the Commissioner. It is contended that "there are two entities of Sharda Ispat Ltd. as a conversion agent for M/s. Tata Iron & Steel Co. Ltd., and M/s. Sharda Ispat Ltd. as an independent manufacturer of iron and steel articles." The billets were received by the conversion unit which cleared MS angles under conversion invoices on payment of excise duty to TISCO. These goods viz. MS angles were bought from TISCO by Sharda Ispat Ltd. (independent manufacture). The goods were cleared by the conversion agent showing payment of duty and bought by the independent manufacture who took the credit of the duty so paid. There is therefore no reason to deny credit.
4. We do not find it possible to accept that the appellant constitute two different legal entities, the so called, "conversion agent", and the "independent manufacture". Sharda Ispat Ltd., the appellant before us is one single jurisdict person. It is clear that this company manufacture angles, purported to clearance of TISCO but did not do so. It took credit of the invoice issued by it, but purportedly issued by TISCO. Thus, the appellant took credit of the duty that it paid on the goods that it manufactured. In other words, the appellant manufactures the goods which never left its factory, although it paid duty on them. It took credit of duty shown to have been paid in purported invoice by TISCO.
5. Copies of some of these invoices have been produced. They bear the name on top in bold letters, Sharda Ispat ltd. It shows the consignor to be TISCO and consignee also to be TISCO. Details are filed against order, transporter truck no. etc. These are the documents on which credit was taken. Now the character of these documents is highly dubious. They were obviously not invoices that were issued by TISCO. As we have noted that they were issued by the appellant and signed by the authorised signatory of the appellant. If the consignor were TISCO, the documents would have been signed by that company. The documents therefore cannot be considered to be invoiced by the TISCO. It also not claimed in the appeal that the invoices were issued by the appellant for and on behalf of TISCO. No such authority is produced. No contract between the appellant and TISCO is produced. This document therefore is not a valid issued in rule 52A and credit could not be taken. Apart form that, the figures of duty purportedly paid in accordance with the documents, the question as to whether the duty stated to have been paid in these invoiced is actually paid and if so by whom is unanswered. It is clear assuming that duty was paid, it was not paid by TISCO. We do not know if the appellant paid it. No evidence is produced in support of this claim. The appellant manufactured these goods and took credit of duty paid on them it would have to be in pursuance of a declaration under rule 57A showing these to be inputs. Evidence of such declaration has not been produced.
6. Considered in their entirely, we do not find a basis for the appellant to take credit. No basis has been shown in the memorandum. We therefore do not find any ground for interference with the order of the Commissioner.
7. The appeal is accordingly dismissed.