Custom, Excise & Service Tax Tribunal
Cce, Amritsar vs M/S. Didar Steel Complex (P) Ltd on 6 August, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Excise Appeal No.277 of 2007-SM (BR)
[Arising out of Order-in-Appeal No.59/CE/APPL/LDH/2006 dated 29.09.2005 passed by the Commissioner of Central Excise (Appeal), Ludhiana]
Date of Hearing/ Decision:06.08.2009
For approval and signature:
Hon'ble Mr. P.K. Das, Member (Judicial)
,,,
1.Whether Press Reporters may be allowed to see
CESTAT (Procedure) Rules, 1982.
2. Whether it should 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?
CCE, Amritsar Appellants
(Rep. by Shri S.N. Srivastava, SDR)
Vs.
M/s. Didar Steel Complex (P) Ltd. .Respondents
(Rep. by Shri Atul Gupta, Company Secretary) CORAM: Honble Mr. P.K. Das, Member (Judicial) Order No/Dated:06.08.2009 Per P.K. Das:
The relevant facts of the case as per record, in brief, are that the respondents are engaged in the manufacture of Iron and Steel products. In the month of July, 2000, the respondents availed Modvat credit of Rs.79,681/- on the basis of invoices issued by M/s. J.K. Jindal & Sons, a registered dealer. A show cause notice was issued proposing to recover the Cenvat Credit of Rs.79,681/- and to impose penalty along with interest. Original Authority dropped the proceedings. Revenue filed appeal before the Commissioner (Appeals), which was rejected. Hence, Revenue filed this appeal.
2. Ld. SDR on behalf of the Revenue reiterates the grounds of Appeal. He submits that during investigation, it was found that the supplier, M/s. J.K. Jindal & Sons had delivered the same quantity of the material in the same truck to the Khanna, which is established on the basis of octroi receipts. He submits that from the octrio receipts, it is established that the same quantity of materials in the same truck was supplied to another person. Therefore, it is clearly established that the respondents availed the credit on the basis of invoice, without receiving the goods, a mere paper transaction. He relied upon the decision of the Tribunal in the case of Ranjeev Alloys Ltd. vide Final Order No.1599/08-SM (BR) dated 8.12.08.
3. Ld. Counsel on behalf of the Respondent reiterates the findings of the Commissioner (Appeals). He submits that the respondents submitted sufficient evidence to establish that the goods were received by them as duly recorded in the impugned order. He drew the attention of the bench to the relevant portion of the adjudication order and the impugned order. He submits that on the identical situation, the Tribunal in the case of CCE, Ludhiana Vs. M/s. M/s. Sham Udyog Ltd. and M/s. Malerkotla Steel & Alloys Pvt. Ltd. Final Order No.1463-1464 /2008-SM (BR) dated 14.10.2008 rejected the appeal filed by the Revenue. He also submits that the case law relied upon by the ld. SDR is not applicable to the present case.
4. After hearing both the sides and on perusal of the records, I find from the Adjudication Order that the respondents placed various evidences to justify that the goods were received by them as recorded in the adjudication order. The relevant portion of the said order is reproduced below:-
4.6 In support of their contention, the noticees produced the copies of D 3 intimations filed with the Range Office, RG 23 A Pt. 1 register, invoices issued by the dealer, GRs, payment of vouchers and copy of ledger. I find that all of these transactions have duly been accounted for in their books of accounts maintained in the ordinary course of business and also accounted for in their RG-23 A Part-I and Part-II Registers being maintained under the central excise law. Further, the inputs were used in the manufacture of the final products which had been properly accounted for in the statutory records and were cleared from their factory on payment of duty. Therefore, it is incorrect to suggest that the invoice, in question, was procured without the actual receipt of the inputs when the receipt of inputs, in question, had duly been duly reflected in their records and due duty on the finished goods produced out of these inputs was also paid to the Government Exchequer by the notice. Thus, the mere allegation of non-receipt of inputs is absolutely incorrect, which has not been supported by any acceptable evidence as discussed above.
5. The main contention of the ld. SDR is that on the basis of octroi receipts, it is established that the respondents have not received the goods and availed the credit on the basis of invoice. In this context, the finding of the Commissioner (Appeals) is reproduce below;-
The present case has been built by the department merely on the basis of octroi receipts, which alone are not sufficient to allege fraudulent transactions particularly when respondents produced documentary evidence to show receipt of subject inputs by them and no evidence has been adduced by the department to substantiate non-receipt or diversion of subject inputs by the respondents. Under these circumstances, I concur with the views of adjudicating authority that mere coincidence of match of truck numbers and quantity of. It has been contended in the departmental appeal that in case of fraudulent avialment/ passing on of modvat credit it cannot be expected that all the missing links are joined by mathematical precision. The above contention in the departmental appeal is not tenable in view of the facts of the present case where the respondents during adjudication proceedings produced positive documentary evidence about receipt of subject inputs by them and in such a situation the onus lies with the department to produce corroborative evidence for non-receipt or diversion of subject inputs by the respondents to establish their case of paper transaction. But, there is neither any such admission about non-receipt or diversion of subject inputs by the respondents and nor any evidence about the party to whom alleged diversion of material was done, has been brought on record.
6. I agree with the findings of the Commissioner (Appeals). I find that no enquiry was conducted to the transporter. The evidences placed by the respondents were not refuted. The case law in M/s. Ranjeev Alloys Ltd. (supra) relied by the ld. DR would not apply here. In the said case, the assessee has not disputed that the vehicle in which the goods covered under the invoice on the basis of which Cenvat credit has been taken, had entered the municipal limits of Khanna city as per the octroi records and for this no explanation has been given. In the present, the respondent categorically contended that they received the goods accompanied with the invoice on the vehicles as mentioned therein.
7. In view of the above discussions, I do not find any reason to interfere the order of the Commissioner (Appeals). The appeal filed by the Revenue is rejected.
Order dictated & pronounced in open court on 6.8.2009.
( P.K. Das ) Member (Judicial) Ckp.