Custom, Excise & Service Tax Tribunal
M/S Wires & Fabriks (Sa) Ltd vs Cce, Jaipur-I on 17 August, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
Excise Appeal No. 1824 of 2009 with
Excise Stay Application No. 1889 of 2009
(Arising out of Order-in-Appeal No. 27(DK)CE/JPRI/2009 dated 20.02.2009 passed by the Commissioner (Appeals), Customs & Central Excise, Jaipur-I).
DATE OF HEARING : 17.08.2009
DATE OF DECISION : 17.08.2009
FOR APPROVAL AND SIGNATURE :
HONBLE MR. JUSTICE R.M.S. KHANDEPARKAR, PRESIDENT
HONBLE MR. B.S.V. MURTHY, MEMBER (TECHNICAL)
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 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?
M/s Wires & Fabriks (SA) Ltd. . Appellants
(Rep by Sh. Alok Kothari)
VERSUS
CCE, Jaipur-I . Respondent
(Rep. by Sh. P.K. Singh, DR)
CORAM : HONBLE MR. JUSTICE RMS KHANDEPARKAR, PRESIDENT
HONBLE MR. BSV MURTHY, MEMBER (TECHNICAL)
ORAL ORDER NO.____________________________
PER B.S.V. MURTHY :
The appeal involves a short issue and, therefore, the stay application as well as appeal are taken up for disposal.
2. The duty amount of Rs. 1,26,620/- has been confirmed against the appellants with equal amount of penalty and interest, as applicable, on the ground that the appellants have not reversed the Cenvat credit actually taken on the capital goods at the time of their removal after the same having been used in their factory for some time.
3. The learned advocate for the appellants fairly submits that the issue involved in the present appeals is covered by the Larger Bench decision of this Tribunal in the case of Modernova Plastyles Pvt. Ltd. vs CCE, Raigad, 2008 (232) ELT 29 (T-LB), wherein the Larger Bench has held that, the expression as such not having any connection with capital goods being new, unused or used and covers both capital goods cleared without being put to use and after use. Therefore, when capital goods are cleared after using the same for some time also, the credit availed has to be reversed. However, he submits that the penalty of equal amount has to be imposed on them and in v iew of the fact that the issue involved interpretation of the Rules and the very fact that the matter has been referred to the Larger Bench also shows that there was a possibility of true interpretation. Further, he also submits that in their reply to the show cause notice also they have stated that there was no malafide or intention to evade duty and they were under the bonafide belief that the amount of credit to be reversed would be payable on the transaction value. Learned DR also fairly agrees. We find considerable force in the arguments advanced by the learned advocate as regards the penalty and he also submitted that as regards the reversal of credit there was no dispute. In view of the fact that the question involved interpretation of the Rules and the matter has been referred to the Larger Bench, we consider that penalty is required to be set aside. In view of the above discussions, the appeal is partly allowed by setting aside the penalty imposed on the appellants. The appeal and the stay application stand disposed of in the above manner.
2. The learned counsel for the appellants submits that, in all the cases credit was taken on the basis of invoices issued subsequently and the invoices and the challans cover the same consignment. He drew our attention to the statements enclosed by the Revenue to the show cause notice which show the details of challans with the corresponding invoices and it is his submission that the goods which were received under challan were subsequently covered by a proper invoice and credit has been taken on the basis of invoice issued by the dealer. He also submits that, principles of natural justice have not been observed since relied upon and non-relied upon documents were not served to the appellants in spite of such requests made. He further submits that, other than the statements of the supplier, there is no other evidence and all the employees of the Company had stated that credit was taken on the basis of invoice only and not on the basis of challans and there is no admission that the goods were not received. He also submits that there is discrepancy between the invoice and the challan, but this sees only with regard to the description of the goods. In the challans detailed description has been given, whereas in the invoices such details are not available. He also cites several decisions of the Tribunal in support of his contention that credit can be taken where the goods have been received but invoice received subsequently. He also submits that, in their own case in similar circumstances the Commissioner (Appeals) has dropped the demand against them.
3. On the other hand, leanred DR submits that, it would not be correct to say that credit has been taken properly. He submits that, the supplier has clearly admitted that wherever the dates of the challan and the dates of the invoice are different, no goods have been supplied. Further, he submits that, the claim of the appellants that the documents were not supplied is not correct and he drew our attention to the observations made by the Commissioner in his impugned order that Shri R.S. Rana, authorized signatory of the appellants, had received all the documents and had given a receipt on 22.12.2008 as per the report received from DGCEI by the Commissioner. To the submission of the learned advocate that several points raised by them were not considered, the learned DR gave a rebuttal point wise and submitted that, all the points have been either elaborately discussed or have been considered by the Commissioner. He submitted that, the fact remains that the appellants have taken credit only on the basis of challans and not on the basis of invoices, which is the prescribed document under the Cenvat Credit Rules.
4. We have considered the submissions made by both sides. This is the second round of litigation and at this stage also the appellants are contesting the fact that they have not been received the documents whereas the Commissioner through the impugned order has recorded a clear finding that the documents have been handed over. Similarly, the contention that the show cause notice was not issued under the proper Rules has also been rebutted in the order by quoting the order-in-original by the Commissioner. Further, the learned advocate has not been able to show how the supplier had admitted that wherever the dates of challans and dates of invoices were different, no goods have been supplied. In all the cases considered in the impugned order, the dates of the challan and the dates of invoice are different. Under these circumstances, we find that no, prima facie, case has been made out by the appellants in view of the clear admission by the appellants and the differences between the challans and the invoices and other evidence brought out by the Revenue. Needless to say that, the matter has to be considered in detail and all the evidences and other arguments advances will have to be considered which can be done only at the time of final hearing. Since the appellants have not been able to make out, prima facie, case, this is not a fit case for waiver of the pre-deposit in total and accordingly we direct the appellants to deposit the balance amount of duty demanded within twelve weeks from today and report compliance on 23rd November, 2009. Subject to compliance of the requirement of the deposit, as above, recovery of the penalty and interest shall stay during the pendency of the appeal. Application stands disposed of accordingly.
(JUSTICE R.M.S. KHANDEPARKAR) PRESIDENT (B.S.V. MURTHY) MEMBER (TECHNICAL) Golay `