Custom, Excise & Service Tax Tribunal
A Kripal Kumar vs Commissioner Of Central ... on 18 April, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH
Excise Appeal No. 1106 of 2012
(Arising out of Order-in-Original No. 13-15/PKA/COMMR/Th-II/2012 dated
28.05.2012 passed by the Commissioner of Central Excise, Thane-II)
M/s. Shah Foils P. Ltd. Appellant
1820/1, Santej Khatraj Road,
Near Rajnagar Bus Stant,
Tal - Kalol, Gandhinagar 382 721.
Vs.
Commissioner of Central Excise, Thane-I Respondent
4th Floor, Navprabhat Chambers, Ranade Road, Dadar (W), Mumbai 400 028.
WITH Excise Appeal No. 1232 of 2012 (Arising out of Order-in-Original No. 13-15/PKA/COMMR/Th-II/2012 dated 28.05.2012 passed by the Commissioner of Central Excise, Thane-II) M/s. Real Strips Ltd. Appellant 401-402, Florance, Opp. Ashram Road Post Office, Ashram Road, Ahmedabad 380 009.
Vs. Commissioner of Central Excise, Thane-II Respondent 3rd Floor, Navprabhat Chambers, Ranade Road, Dadar (W), Mumbai 400 028.
WITH Excise Appeal No. 1334 of 2012 (Arising out of Order-in-Original No. 13-15/PKA/COMMR/Th-II/2012 dated 28.05.2012 passed by the Commissioner of Central Excise, Thane-II) M/s. S.D. Enterprises Appellant 459/A-2, Shah & Nahar Industrial Estate, Dhanraj Mill Compound, S.J. Marg, Lower Parel, Mumbai 400 013.
Vs. Commissioner of Central Excise, Thane-II Respondent 3rd Floor, Navprabhat Chambers, Ranade Road, Dadar (W), Mumbai 400 028.
WITH Excise Appeal No. 1335 of 2012 (Arising out of Order-in-Original No. 13-15/PKA/COMMR/Th-II/2012 dated 28.05.2012 passed by the Commissioner of Central Excise, Thane-II) 2 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 Deepak Agarwal Appellant 459/A-2, Shah & Nahar Industrial Estate, Dhanraj Mill Compound, S.J. Marg, Lower Parel, Mumbai 400 013.
Vs. Commissioner of Central Excise, Thane-II Respondent rd 3 Floor, Navprabhat Chambers, Ranade Road, Dadar (W), Mumbai 400 028.
WITH Excise Appeal No. 85133 of 2015 (Arising out of Order-in-Original No. 13-15/PKA/COMMR/Th-II/2012 dated 28.05.2012 passed by the Commissioner of Central Excise, Thane-II) A. Kripal Kumar Appellant Flat No.501, Bldg. No.16, Khatau Mill Compound, Siddharth Nagar, Borivali (E), Mumbai 400 066.
Vs. Commissioner of Central Excise, Thane-II Respondent 3rd Floor, Navprabhat Chambers, Ranade Road, Dadar (W), Mumbai 400 028.
WITH Excise Appeal No. 85985 of 2015 (Arising out of Order-in-Original No. 13-15/PKA/COMMR/Th-II/2012 dated 28.05.2012 passed by the Commissioner of Central Excise, Thane-II) Sunil Peshwaria Appellant Skylark, 6th Floor, Lokhandwala Complex, Andheri (W), Mumbai 400 053.
Vs. Commissioner of Central Excise, Thane-II Respondent 3rd Floor, Navprabhat Chambers, Ranade Road, Dadar (W), Mumbai 400 028.
WITH Excise Appeal No. 87474 of 2019 (Arising out of Order-in-Appeal No. NA/GST A-III/MUM/425-431/18-19 dated 29.03.2019 passed by the Commissioner of Central Excise (Appeals), Mumbai-III S.D. Enterprises Appellant Unit No.III, Gala No.8, Adhikanksha Warehouse, Plot No.11 & 12, Chinchpada, Vasai (E), Palghar Vs. Commissioner of Central Excise, Palghar Respondent 3 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 AND Excise Appeal No. 87480 of 2019 (Arising out of Order-in-Appeal No. NA/GST A-III/MUM/425-431/18-19 dated 29.03.2019 passed by the Commissioner of Central Excise (Appeals), Mumbai-III Commissioner of Central Excise, Palghar Appellant Vs. S.D. Enterprises Respondent Unit No.III, Gala No.8, Adhikanksha Warehouse, Plot No.11 & 12, Chinchpada, Vasai (E), Palghar Appearance:
Shri J.C. Patel, Advocate for the Appellant Assessees Shri Amrendra Kumar Jha, Deputy Commissioner, Authorised Representative for the Respondent Revenue CORAM:
HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) HON'BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Date of Hearing: 18.04.2023 Date of Decision: 18.04.2023 FINAL ORDER NO. 85795-85802/2023 PER: SANJIV SRIVASTAVA The details of the appeals under consideration are as per table below:
Impugned Appeal No. Name of Show Duty Penalty Fine
Order Appellant Cause
Notice
date
Order in E/1334/2012 SD 31.1.2005 1,53,52,659 1,53,52,659 Nil
Original No 13- Enterprises for /- + 50 Lakhs
15/PKA/COMMR recover of 2,03,81,566
/Th-II/2012 rebate
dated already
28.05.2012 granted
and
rejection
of
pending
rebate
claims
19.07.200 Nil 5,00,000/- 5
4 for Lakhs
confiscati
on of the
seized
inputs
15.02.200 1,72,633/- 50,000/- Nil
5 for
rejection
of
pending
rebate
claims
E/1334/2012 Deepak As above Nil 27 Lakhs Nil
Agarwal
E/1106/2012 Shah Foils P 31.1.2005 Nil 1 lakhs Nil
4 E/1106,1232,1334,1335/2012,85133,85985/2015,
87474,87480/2019
Ltd
E/1232/2012 Real Strips 31.1.2005 Nil 1 lakhs Nil
Ltd.
E/85133/2015 A Kripal 31.1.2005 Nil 1 lakhs Nil
Kumar
E/85985/2015 Sunil 31.1.2005 Nil 1 lakhs Nil
Peshwaria
Order in appeal E/87474/2019 SD 30.5.2005 78,74,862 78,74,862 Nil
No NA/GST A- Enterprises &
III/MUM/425- E/87480/2019 Commission 18.05.200 1,36,55,213 Nil
431/18-19 er 6 for /-
dated denial of Dropped by
29.03.2019. CENVAT Commission
Credit er Appeal
2.1 Appellants are manufacture of the goods which they were
exporting under claim of rebate. Investigations were initiated against the appellant which culminated in issuance of SCN dated 15.02.2005, 31.05.2005 and 30.05.2005. 2.2 By the said show cause notices it has been alleged that appellants have not received the duty paid goods for the manufacture of goods exported by them under claim of rebate.
The evidence relied upon for issuance of the notices were:
Letter dated 16.09.2004 of RTO Chennai;
Letter dated 11.03.2004 & 09.07.2004 of RTO Thane and RTO Tardeo;
Letter of Sales Tax Officer, Bhilad Check Post Gujarat; Samples alleged to be drawn out of Representative samples of Export Goods;
2.3 These show cause notices have been adjudicated as per the impugned orders.
2.4 Against the impugned order dated 28.05.2012 appellants have filed the appeal and against Order in appeal dated 25.03.2019 both Appellants and Revenue have filed the appeal. 3.1 We have heard Shri J C Patel, Advocate for the appellants/assessees and Shri Amrendra Kumar Jha, Deputy Commissioner, Authorized representative for the revenue. 4.1 We have considered the impugned orders along with the submissions made in appeal.
4.2 During course of argument appellant counsel heavily relied upon the investigation report prepared by the department (then Commissioner) which has been obtained by the appellant in RTI and made part of the records. The said report is reproduced below in original:
5 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 6 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 7 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 8 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 9 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 10 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 11 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 12 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 13 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 14 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 15 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 16 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 17 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 18 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 19 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 20 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 21 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 22 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 4.2 From the perusal of the investigation report it is evident that Undisputedly upon receipt of the duty paid inputs in the Appellants' factory, the Appellants used to give Intimation to the department giving the details of the inputs received and the same used to be verified by the Central Excise officer who made endorsement of verification on such Intimations. Copies of such intimations are annexed by way of examples in Volume 6 (Pages 9 to 34). We have perused the said intimation letters and we are 23 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 convinced that these letters were filed with the revenue authorities.
4.3 Letter dated 16-9-2004 of RTO Chennai: In respect of the Vehicles mentioned in the said Letter dated 16.09.04 of the RTO Chennai, the Supdt of Central Excise HPU, Chennai I, had recorded on 24.12.04, statement of Shri N Rangabhashyam, Manager of Bombay Transport Co, Chennai, who had transported the inputs in question in the said vehicles. The said statement is at Page 5 of Vol. XI. In the said statement, the said manager of Bombay Transport was shown the LRS which mentioned the said Registration numbers and under which LRs the goods were transported from Chennai to the Appellants. The said Manager of the transported confirmed that the goods under the said LRs were loaded at the godown of the Supplier at Chennai and transported and delivered to the Appellants at their factory at Vasai. He has further clarified, that there were certain clerical mistakes in mentioning the Registration Nos of the Vehicle in the LRs. This Statement was suppressed in the Show Cause Notice and has obtained under RTI by Appellants.
4.4 Letters dated 11.03.04 and 9-7-2004 of RTO Thane and RTO Tardeo: The said two letters are at Pages 8 and 18 respectively of Vol. XI. A plain reading of the said letters of RTO Thane and RTO Tardeo would show that none of the Vehicles was a Motorcycle. On the contrary, most of the Vehicles referred to in the said letters, were goods trucks/ Heavy goods vehicles, which had carrying capacity which was sufficient to carry the goods in question.
4.5 Letter of Sales Tax Officer, Bhilad Check Post, Gujarat:
There are two letters of the same date viz. 25-8-2004, which are at Pages 75 and 75-A of Volume XI. These letters confirm that entries relating to goods supplied by Shah Alloys Ltd, Real Strips Ltd. Shah Metal Industries and Unison Metals have been found in the Register maintained by the Check Post, Bhilad. Yet the Notice falsely contends that the goods did not enter Maharashtra. The enclosures to the said letters have been suppressed and not provided.
4.6 The Show Cause Notice has suppressed letter dated 4-6- 2004 from Sales Tax Officer, Bhilad Check Post addressed to the 24 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 Assistant Commissioner of Central Excise (Prev), Thane-II, in which it is stated that vehicles passing through Bhilad Check Post are checked on random basis and it is not necessary that all entries related to such vehicles are to be entered in their register and that therefore it is not possible to state conclusively whether the vehicles listed in the Asstt Commr's letter had passed through the said Check Post or not. Further, in any event, Bhilad is not the only exit point from Gujarat to enter Maharashtra and goods from Gujarat can enter Maharashtra also through Songadh, Talasari, Saputara, Kaprada and route from Ahmedabad via Baroda-Pardi-Jawahar South West-Wada-
Maharashtra.
4.7 Samples alleged to be drawn out of Representative Samples of Export Goods, alleged to be available with the Range Office were fabricated by the department. In Report dated 27- 12-2004 put up by Deputy Commissioner of Customs (Preventive), Central Excise Thane-II to the Commissioner reproduced, he has stated that there is no record to show any permission granted to Shr. D.R. Chaturvedi, Supdt (Prev), HQrs to draw any samples at the vasai Range office. He has further stated that the officers procured assorted steel items, packing and stitching material from the assessee factory on 22-1-2004 and brought it to the Range office and re-created samples on 22.01.2004 and such re-created samples were used on 10.02.2004 during panchnama. He has stated that the items contained in the parcels are not the exported products as per the packing list and none of the items bear the product name and details as per the packing list of the exported goods. He has further reported that the bags prepared on 22-1-2004/10-2- 2004, have been marked on plastic with ARE 2 nos and signatures made on the bags since the original export sealing label was not available with them. He has further reported that it appears that Shri Rajendra Jaiswal was intentionally called before the Panchas, who did not understand the motive behind this; however, the Mg Partner of the Appellants on the very next day 12-2-2004 complained immediately in the matter. The Report further states that as per the evidence collected and inquiry done by the Assistant Commissioner Central Excise, Div Vasai, the samples parcels used on 10-2-2004 cannot be 25 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 considered as the authentic sample parcels of the exported goods, which were prepared at the time of container sealing.
4.8 The Registered Dealers who had supplied the goods in question have all confirmed in their statements (Paras 42 to 75 of SCN-Pages 115 to 129 of Vol.VIII) that they had supplied to the Appellant, and that, the Appellant had purchased from them SS Sheets / Coils, covered by the excise invoices, issued by them. The dealers have further confirmed, that payments for such Purchases by the Appellants, were made by Cheques.
4.9 Reliance placed in the Notice on statements of Vehicle Owners is misconceived inasmuch as the Vehicle Owners were not themselves using the vehicles for transport and were giving their vehicles on hire to Cargo Agents/Transport Contractors who carried out the transportation. The department had carried out investigations which such Cargo Agents/ Transport Contractor who confirmed having transported the inputs to the Appellants' factory, but the same has been suppressed in the Show Cause Notice. Letter dated 30-11-2004 (Page 403 of Vol. XVII) submitted by Vinod Chauhan on 2-12-2004 to the Superintendent (Prev) Central Excise, Thane-II on behalf of Tropical Transports, Panchsheel Roadways and Vin Logistics, shows that Statement dated 25-10-2004 of Vinod Chauhan had been recorded by the department, but which has not been referred to in the Show Cause Notice. It is also with the said letter he submitted date wise details of all payments received by his firm from the Appellant, together with Cheque Nos/ Bank details. He had also submitted copies of receipted Challans showing delivery of the goods to the Appellant's factory. He has clearly stated that he used to take Vehicles on hire from various persons such as Sumit Ahuja, A. Gupta, Sonu, Pandey dalal and others in Kalamboli who gave their trucks on hire for local transport.
4.10 One of the Vehicle Owners, Sumeet Ahuja, whose statement dated 14-9-2004 is relied upon in Para 13 (Page 107 of Vol. VIII), has affirmed Affidavit (Page 341 of Vol. VIII in Appeal No.E/87474 of 2019) wherein he has affirmed that he had provided his trucks to Cargo agent, Vinod Chauhan during the period 2002-03, 2003-04 and that since he had given the trucks on hire, he is unaware of the details of cargo carried in 26 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 the said trucks and information about the same can be given by Vinod Chauhan.
4.11 It would be evident from letter dated 15-9-2004 (Page 364 of Vol. XVII) of another Cargo Agent, S.M.Akbar, submitted to the Superintendent (Prev), Thane, that his Statement dated 3rd Sept 2004 had been recorded by the department. The said Statement has not been referred to in the Show Cause Notice. It is apparent from the said letter that the said S.M.Akbar had stated that he is a Cargo agent, specializing in consolidation and movement of cargo from Kalamboli and Navi Mumbai and that the Appellant was their regular client. He submitted attested copies of challans of the suppliers with Appellant's stamp and signature of the receiver in the Appellant's factory and copies of weigh bridge slips. He also submitted statement of payment received from the Appellant by his firms, S.M. Akbar and Velankali Roadways.
4.12 In Note Sheet Order dated 31-12-2004 passed by the then Commissioner of Central Excise, Thane-II, Shri Shishir Kumar, after reviewing the investigations and evidence, in the light of the complaint dated 15-12-2004 by the Appellants' partner, the said Commissioner has in Para 6 (ix) (Page 7 of Vol. XII), noted that as per the investigation, there is no dispute that the payments have been made by the Appellants to all Input Suppliers through Payees Account Cheques and through proper banking channels. The inputs supplied to the Appellants have not been found at any other place, the transporters have not reported any diversion and delivery to any other person, no evidence is found showing receipt of the inputs by any third party. There is no flow back of the money to the Appellants.
4.13 In view of the above we are of the view that the proceeding are in bad in law from the initiation of proceedings by way of issuance of show cause notice. When the show cause notices themselves are bad in law and the adjudication order passed in respect of these show cause cannot be sustained. It is also not understood why revenue proceeded with the show cause notice when the investigation report as reproduced above has concluded against the issuance of show cause notice.
27 E/1106,1232,1334,1335/2012,85133,85985/2015, 87474,87480/2019 5.1 In view of the above all the appeals filed by the appellant are allowed and that filed by the revenue is dismissed.
(Order pronounced in the open court) (Sanjiv Srivastava) Member (Technical) (Dr. Suvendu Kumar Pati) Member (Judicial) tvu