Custom, Excise & Service Tax Tribunal
M/S. Adhunik Steels Ltd vs Cce, Chandigarh on 14 July, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI COURT III CENTRAL EXCISE APPEAL NO. 2681 to 2685, 2844-45, 2852 to 2856, 2873 to 2877, 2879 to 2881, 2908-09, 2970, 2980 to 2982, 3005, 3092 to 3095 OF 2006-SM [Arising out of Order-in-Appeal No. 333 to 372/CE/CHD/06 dated 28.04.2006 and 581 to 603/CE/CHD/06 dated 30.6.2006 both passed by the Commissioner (Appeals), Central Excise, Chandigarh] For approval and signature: Honble Mr. P.K. Das, 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 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? M/s. Adhunik Steels Ltd., Shri Nirmal Kumar Agarwal, Director M/s. Tata Iron & Steels Co. Ltd., M/s. Adhunik Ferro Alloys Ltd., M/s. Neepaj Steel (India) Shri Sushana Banerjee, Shri Navneet Gupta, Director, Shri Hukum Chand Bansal Appellants Vs. CCE, Chandigarh Respondent
Appearance:
Shri Kamajjeet Singh Singh, Advocate for the appellants;
Shri S.N. Srivastava, SDR & Shri Iskit Khar Baig, SDR for the respondent Coram:
Honble Mr. P.K. Das, Member (Judicial), Date of hearing/decision: 14th July, 2009 FINAL ORDER NO._________________ dated __________ Per P.K. Das:
Common issue is involved in these appeals and, therefore, all are being taken up together for disposal.
2. Learned Advocate submits that the appellants are registered dealers and the Director/Manager of registered dealers. He also submits that penalties were imposed on the appellants on the ground that they have issued invoices without supplying the material. He submits that the appellants produced the relevant records in order to establish that the goods were supplied accompanied by invoices which are not considered by the lower authorities. He also relied upon the decision of the Division Bench of the Tribunal in the case of Aarti Steels Ltd. & Ors. vs. CCE, Ludhiana & Ors, reported in 2008 (89) RLT 235 (CESTAT-Del.).
3. Learned DRs on behalf of the Revenue submit that on investigation it was found that the vehicle numbers mentioned in the invoices are of two wheelers, like scooter and moped, etc. They also submit that the appellants failed to establish that they supplied the material with invoices with any evidence. Learned DRs relied upon the decision of the Tribunal in the case of Rajeev Alloys Ltd. vs. CCE, reported in 2008 (89) RLT 227 (CESTAT-Del.).
4. After hearing both sides and on perusal of the records, I find that the Commissioner (Appeals) on identical issue in earlier orders set aside the penalties on the basis of Newspaper reports of Tribune and The Times of India wherein it has been reported that 500 vehicles are running in Punjab State on fake registration. In the present cases, the Commissioner (Appeals) changed his mind on the ground that the same practice is still prevailing as the appellants have not taken any remedial action to amend the said mistake. In my view, penalty cannot be set aside/upheld on the basis of News-paper report. It is seen that the Commissioner (Appeals) have not examined the evidences placed by the appellants. The Division Bench of the Tribunal in the case of Aarti Steels Ltd. & Ors. (supra), after considering the decision in the case of Rajeev Alloys Ltd. (supra), held as under:-
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 [reported in 2008 (89) RLT 227 (CESTAT-Del.)]. 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.
5. 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.
5. In view of the above decision and, after considering the facts and circumstances of the case, impugned orders are set aside. All the matters are remanded back to the adjudicating authority to decide afresh in the light of the above decision of the Tribunal. All the appeals are allowed by way of remand.
(Dictated & pronounced in the Open Court.) (P.K. DAS) MEMBER (JUDICIAL) RK