Custom, Excise & Service Tax Tribunal
C.C.E. Jalandhar vs M/S. Dcm Engg. Products on 24 December, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K.PURAM, NEW DELHI. EXCISE APPEAL NO.3727-3738/2006-SM [Arising out of Order-in-Appeal No.257-258/CE/JAL/2006 dated 24.08.2006 of the Commissioner (Appeals), Central Excise, Jalandhar] Date of hearing/decision:24.12.2008. C.C.E. Jalandhar Appellant [Represented by Shri S.K.Bhaskar, DR] Vs. M/s. DCM Engg. Products .Respondent
[Represented by Shri S.C. Kamra, Advocate] CORAM: Honble Mr.D.N. PANDA, JUDICIAL MEMBER ORDER NO. /Dated: 24.12.2008 PER: D.N.PANDA Revenue proceeded against the respondent M/s. DCM Engineering Ltd. on the charge that the said concern had availed higher amount of Modvat Credit to the extent of Rs.93693/- against the purchases made from M/s. Guwahati Carbon Limited. The excess Modvat Credit according to the Department is attributable to the daily addition by way of freight to the cost of goods cleared by Guwahati Carbon Ltd. With this charge the appellant M/s. DCM was directed by adjudicating authority to pay back the amount of Rs.93,693/- availed by them as Modvat Credit. Similarly, penalty of Rs.50,000/- was imposed on that amount. The appellant M/s. Guwahati Carbon Ltd., by the same order of adjudication, imposed penalty of Rs.50,000/-. Both these appellants came in appeal before the ld. Commissioner (Appeals). That authority allowed appeal of both the appellants and given relief from charges as well as levies.
2. Revenue being aggrieved by the order in appeal came before this Forum against both the assessee, who are respondents here. The respondents M/s. Guwahati Carbon Ltd. has come in cross objection against Revenues appeal Case No. 3727/06 whereas M/s. DCM Engineering has not come in cross objection.
3. The ld. DR appearing for Revenue has supported the orders of the adjudication.
4. The ld. Counsel, Shri S.C. Kamra appearing for the assessee M/s. DCM Engineering Ltd. in appeal case No.3727/06 submits that whatever was the duty required to be paid as per invoice, which was paid by the respondent M/s. Guwahati Carbon Ltd. The genuineness of payment of duty is doubted by the Department. He also submits that there is no malafide of the respondent M/s. DCM Engineering Ltd. He further submits that whatever duty has been paid by the respondent against the purchases that was only claimed against Modvat Credit. Neither there was any unjust claim towards Modvat Credit nor any illegal claim by the assessee
5. There was no appearance by the respondent, M/s. Guwahati Carbon Ltd.
6. The record reveals that the only charges levelled by the Revenue was that the freight was added to the basic price at the time of clearance, which has boosted the excise liability. Other than this charge, there is no evidence brought to show that both parties are intentionally doing any act which causes any evasion to the revenue. No intention of the parties has been proved to bring them to charge. Therefore, duty paid by M/s. D.C.M. Engineering Ltd. having gone to tragedy through M/s. Guwahati Carbon Ltd. the Respondent D.C.M. Engineering Ltd. should not be debarred to take credit of the same in the absence of any questionable conducts. Finding any material against both the respondents, Revenue fails in both these appeals. Accordingly, both the appeals of the Revenue are dismissed. In view of the above dismissal, Cross Objection in appeal No.3728 is also disposed.
[Dictated & Pronounced in the open court].
(D.N.PANDA) JUDICIAL MEMBER AJ