Custom, Excise & Service Tax Tribunal
M/S Indo Chem Oil India Ltd vs Cce & St, Gurgaon on 25 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 COURT NO.1 Appeal No.E/53165 & 53168/2015-(SM) [Arising out of the Order-in-Appeal No.83-84/CE/Appeal-II/Delhi/2015 dated 06.05.2015 passed by the CCE (Appeals), Gurgaon.) Date of Hearing/Decision: 25.07.16 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 Indo Chem Oil India Ltd Roshan Lal Director Appellants Vs. CCE & ST, Gurgaon Respondent
Appearance Ms. Karati Somani, Advocate- for the appellant Shri. Satyapal, AR - for the Respondent CORAM: Honble Mr.Ashok Jindal, Member (Judicial) FINAL ORDER NO: 61008-61009/2016 PER: ASHOK JINDAL The appellants have filed these appeals against the impugned orders demanding duty on account of denial cenvat credit on inputs along with interest and imposing penalties on both the appellants.
2. The brief facts of the case are that an investigation was conducted at the end of supplier M/s Petrolube India Limited wherein it has been found that the M/s Petrolube India Limited is issuing only invoices not supplying the goods in continuation of that investigation. It was found that M/s Petrolube India Limited has issued three invoices to the appellants on the basis of said invoices the appellant has availed cenvat credit. A show cause notice was issued to the appellants to deny cenvat credit on the invoices issued by M/s Petrolube India Limtied on the premises that M/s Petrolube India Limited has not supply the goods to the appellants, therefore, the appellant is not entitled to avail cenvat credit. The show cause notice was adjudicated and cenvat credit was denied to the appellants, consequently, duty was demanded along with interest and penalty was also imposed on both the appellants. Aggrieved from the said order, the appellant is before me.
3. The ld. Counsel for the appellant is submits that the supplier of the goods have never stated that they have not supplied the goods to the appellants. Moreover, out of three transporters, two transporters are missing and one transporter has stated that they have not transported the goods of M/s Petrolube India Limited but the Ld. Counsel submits that the vehicle involved in the said transportation is not of the transporter and it is in the name of person Sh. Mukesh. In that circumstances, the statement of transporters is not reliable. Moreover, no investigation has been collected by the revenue to deny cenvat credit as to how the appellant have procured the inputs when they have used the goods in the manufacturing of their final product. In that circumstance, cenvat credit cannot be denied to support his contention. He relied on the decision in the case of Neepaz Steels Ltd. reported in 2008 (230) ELT 218 (P&H), Motabhai Iron & Steel Industries reported in 2015 (316) ELT 374 (Guj), Shakti Roll Cold Strips Pvt. Ltd. reported in 2008 (229) ELT 661 (P&H) and Modern Ex-servicemen Engg Co. Pvt. Ltd. reported in 2014-TIOL-1399-CESTAT-DEL.
4. On the other hand, the Ld. AR submits all the transporters are non-existence and the supplier of goods in stated they have not supplied the goods to the appellant, therefore, the lower authorities has correctly denied the cenvat credit to the appellant.
5. Heard the parties and considered the submissions.
6. On careful consideration of the submissions made before me, I find that in this case the Ld. AR has failed to produce the statement of the supplier specifically stating that the supplier has not supplied the goods to the appellant. Moreover, out of three transporters, one transporter has made a statement under section 14 of the Central Excise Act, 1944, in that circumstances, the contention of the Ld. AR is not correct that all the transporters supplying the goods to the appellants are non-existence. It is also on records that accept for the statement of one of the transporter whose statement has been relied has not involved in the supply goods to the appellant and no other evidence is placed on records by the revenue to deny the cenvat credit to the appellant. In that circumstance, the benefit of doubt goes in favour of the appellant. As the appellant has been able to prove that one of the truck in which the goods have been received by them belongs to one Sh. Mukesh who is not examined by the revenue, therefore, on the basis of assumption or presumption, the Cenvat credit cannot be denied. In that circumstances, the impugned order deserves no merits. Accordingly, the same is set aside.
In result, the appeals are allowed with consequential relief (Dictated & Pronounced in the open court) (Ashok Jindal) Member (Judicial) rt 1