Custom, Excise & Service Tax Tribunal
C.C.E., Chandigarh vs Karan & Co on 25 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Date of Hearing/decision: 25.11.2013
Appeal No. E/2632-2633/2006 and
E/3486, 3488, 3489/2006 - EX[SM]
[Arising out of Order-in-appeal No. 448-452/CE/CHD/2006 dt. 30.05.2006, passed by Commissioner (Appeals), Central Excise- Chandigarh]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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?
C.C.E., Chandigarh Appellants
Vs.
M/s. Kulja Industries Ltd.
Sh. Hamendra Dutt Sharma, Director
Sh. Vinod Kumar, Director
M/s. Dynamic Petro Products Ltd.
Karan & Co. Respondent
Appearance:
Sh. M.S.Negi, AR - for the Appellants Sh. Joy Kumar, Advocate - for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) FINAL ORDER NO:- 58412-58416/2013 Per Archana Wadhwa:-
All the appeals filed by the Revenue are being disposed of by a common order as the same arise out of the same impugned order passed by the Commissioner (Appeals) vide which he has set aside the orders of the Adjudicating Authority, by which he has denied the Cenvat Credit to the extent on the ground that the movement of the inputs do not stands entered into the records of the Sales Tax authorities, which are located enroute to the respondents factory.
2. After hearing both the sides duly represented by Sh. M.S.Negi, AR, appearing for the Revenue and Sh. Joy Kumar ld. Advocate, appearing for the Respondent, I find that Commissioner (Appeals) has allowed the appeal by observing as below:-
I have carefully examined the case records including the Appellants submissions made in writing and at the time of personal hearing and observe that the demand in question has been confirmed only on the ground that the entry of the inputs was not found in the records of the Service Tax/Barrier. As there is no provision under the Central Excise Law for the requirement of producing any ST-XXVI-A forms failing which the material would be treated to have not been received and credit would be disallowed. In terms of Central Excise Law the receipt of inputs is established from the statutory Central Excise Records. Moreover, the Appellant have made the payment of these inputs to the supplier through Account Payee Cheque/Draft in their favour and the Department has not denied the same in the Order-in-original. These Cheques have been realized and enchased by supplier which is clear cut proof of the fact that they have supplied the required material to the Appellant and they in turn have used the inputs in the manufacture of final product.
The above contention of the Appellant have been supported by the documentary evidence such as invoices, receipts of the inputs in their statutory records, clearance of the finished goods from the factory on payment of duty and availment of payment through Account Payee Cheques by the consignor of inputs and realization/enchashing of these Cheques in their account etc. Whereas the contention of the Department are not at all supported by any documentary evidence rather they are based only presumption and assumption, which cannot legally be relied upon. I therefore, find that the Appellants have proved beyond doubt that they have received the inputs in question and the same have been used by them in the manufacture of final product.
Moreover I have already decided the similar issue in number of cases in favour of the Appellants.
3. The Revenue has not denied the fact that the only evidence available with the Department and relied upon by them is non entrance of the goods in Sale Tax Check Post/Barrier. No investigation stands made by the Revenue at the end of the supplier of the inputs or from the transporters so as to conclude that the respondents have not received any inputs. In respect of transporters, their statement were recorded wherein they have admitted to having crossed the sales tax barrier and having transport the goods. As such the said statement of transport are in favour of the assessee.
4. I find that the identical issue was subject matter of the earlier appeals where in the Division Bench of the Tribunal held in favour of the assessee. In case of Himalayan Pipe Industries Vs. CCE, Chandigarh, reported in 2013 (293) ELT-739 (Tri.- Del.) it was observed as under:-
Demand and penalty Denial of Cenvat Credit of duty paid for inputs- evidence- non-production of ST XXV I-A forms of sales department verifying entry of vehicles to Himachal Pradesh where factory located raising presumption of non-receipt of goods held by Tribunal in identical cases that credit do not to be denied on sole ground of non-production of ST XXVI-A forms in view of conflicting record maintained by assessee such as payments made by cheque/drat to suppliers for receipt of raw materials. No inquiry made by Revenue from supplier in instant case. Information from Sales Tax Department not reliable as some ST XXVI-A forms produced by assessee declared not available by said department. Demand and penalty set aside as not sustainable. Sections 11A and 11AC of Central Excise Act, 1944.
5. As it seen, the Tribunal in the above referred decision has relied upon various precedent decision as also the dismissal of the Revenues appeal against the earlier final orders, by the Honble High Court of H.P. In as much as the said Division Bench decision has already held in favour of the assessee by taking note of the earlier precedent decisions, I find no merits in the Revenues case. The impugned orders of the Commissioner (Appeals) are accordingly upheld and Revenues appeals are dismissed.
(Order dictated in the open court)
(Archana Wadhwa) Member (Judicial)
S.Kaur
1