Custom, Excise & Service Tax Tribunal
M/S Sonia Overseas (P) Ltd vs Cce, Panchkula on 26 February, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV Excise Appeal No. 494 of 2011 (SM) [Arising out of the Order-in-Appeal No. 737/CE/D-II/2010 dated 26/11/2010 passed by The Commissioner (Appeals), Central Excise, New Delhi.] For Approval and signature : Honble Shri Rakesh Kumar, 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 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 : Department Authorities? M/s Sonia Overseas (P) Ltd. Appellant Versus CCE, Panchkula Respondent
Appearance Shri Ajay Jain, Advocate for the appellant.
Shri R.K. Mathur, Authorized Representative (DR) - for the Respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) DATE OF HEARING : 26/02/2013.
Final Order No. 55709/2013 Dated : 26/02/2013 Per. Rakesh Kumar :-
The appellant are manufacturers of zinc sulphate from zinc ingots. During March 2004, they on the basis of an invoice No. 741 dated 26/3/04 issued by a registered dealer M/s M.S. Metals took Cenvat credit of Rs. 1,04,083/- in respect of zinc metal received under that invoice. The invoice No. 741 dated 26/3/04 issued by registered dealer M/s M.S. Metals was having reference of the invoice No. 554 dated 26/3/04 issued by M/s Kiran Metal from whom M.S. Metal had received the goods. The department checked the invoice No. 554 dated 26/3/04 issued by M/s Kiran Metal and as per the invoice, the goods covered under the invoice had been transported by truck No. DL-1L3 6091. However, on inquiry, the owner of the truck Shri Ram Chander in his statement dated 5/2/08 stated that he had not transported the goods covered under Invoice No. 554 dated 26/3/08 in his truck from M/s Kiran Metal to M/s M.S. Metal and he had not received any transport charges and not had issued any GR. It, therefore, appeared that the invoice No. 554 dated 26/3/04 had been issued by M/s Kiran Metal to M/s M.S. Metal without supply of any material and since the invoice No. 741 dated 26/3/04 had been issued by M/s M.S. Metal on the basis of invoice No. 554 dated 26/3/04 issued by M/s Kiran Metal, the invoice No. 741 dated 26/3/04 issued by M/s M.S. Metals to the appellant also appeared to be bogus. On this basis, a show cause notice was issued to the appellant alongwith interest and also imposition of penalty alleging that they have availed this credit on the basis of bogus invoice without actually receiving any goods. The show cause notice was adjudicated by the Assistant Commissioner vide order-in-original dated 20th April 2010 by which the above-mentioned Cenvat credit demand was confirmed alongwith interest and penalty of equal amount was imposed on the appellant. This order of the Assistant Commissioner was upheld vide order-in-appeal dated 26/11/10 against which this appeal has been filed.
2. Heard both the sides.
3. Shri Ajay Jain, Advocate, the learned Counsel for the appellant, pleaded that the appellant had actually received the goods covered under Invoice No. 741 dated 26/3/04, that payment for the goods had been made by cheque, that this aspect has been ignored by the department, that the cross-examination of the truck owner has not been permitted by the department and in view of this, merely on the basis of truck owner statement, it cannot be alleged that no goods were transported from M/s Kiran Metal to M/s M.S. Metal and, hence, from M/s M.S. Metal to appellants premises, that the receipt of the goods covered under the Invoice No. 741 dated 26/3/04 is supported by the statutory records maintained by the appellant, that no shortage of cenvated availed inputs was detected in their factory, that in the case of Motherson Sumi Electric Wires vs. CCE, Noida reported in 2009 (246) E.L.T. 651 (Tri. Del.), the Tribunal held that the allegation of non-receipt of inputs covered under particular invoice merely on the basis of the statement of the employees of the supplier firm is not sustainable when the request for cross-examination of such employee was not allowed, that ratio of this judgment is squarely applicable to the facts of this case, that he also relies upon the Tribunals judgment in he case of Luxmi Metal Industries vs. CCE, Delhi II reported in 2013 (287) E.L.T. 487 (Tri. Del.), wherein it was held that when the buyer purchased goods from registered dealer under proper invoices and there being no dispute about the credentials of the cenvatable invoices issued by the registered dealer, the buyer cannot be expected to go beyond that to verify and find out as to whether the registered dealer had purchased the same legally or not and that in view of the above submissions the impugned order is not sustainable.
4. Shri R.K. Mathur, the learned Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it and emphasised that the invoice on the basis of which the Cenvat credit had been taken by the appellant, had been issued by the registered dealer M/s M.S. Metal on the basis of invoice No. 554 dated 26/3/04 issued by M/s Kiran Metal, that the invoice No. 554 dated 26/3/04 is a bogus invoice, as this invoice mentions a truck number and on inquiry with the owner of that truck, it was found that no goods had been transported in that truck, and no GR had been issued, that when the invoice No. 554 dated 26/3/04 is bogus, the invoice No. 741 dated 26/3/04 issued by M/s M.S. Metal on the basis of which credit has been taken is also bogus, that the judgments relied upon by the appellant are not applicable to the facts of this case and that in view of the above, there is no infirmity in the impugned order. He also pleaded that though the appellant have produced GR No. 4481 dated 26/3/04 issued by M/s Sonu Roadlines, Rewari, this GR does not mention the vehicle number and, as such, same is a bogus GR produced by the appellant.
5. I have carefully considered the submissions from both the sides and have perused the record.
6. The undisputed facts are that the invoice No. 741 dated 26/3/04 issued by M/s M.S. Metal on the basis of which the appellant had taken Cenvat credit had been issued by M/s M.S. Metal on the basis of Invoice No. 554 dated 26/3/04 issued by M/s Kiran Metals. It is also not disputed that the invoice No. 554 dated 26/3/04 mentions the truck No. DL 1 LE 6091 as the truck in which the goods had been transported. However, the registered owner of this truck Shri Ram Chander in his statement dated 5/2/08 has categorically denied to have transported any goods and has also denied to have issued any GR and received any payment. The appellant have produced a GR dated 26/3/04 issued by M/s Sonu Roadlines, but the same does not mention the vehicle number which is strange and, therefore, the same has to be treated as a bogus GR. Since, there was no transportation of any goods from the premises of M/s Kiran Metal to M/s M.S. Metal and, as such, the invoice No. 554 dated 26/3/04 was bogus, the invoice No. 741 dated 26/3/04 which has been issued on the basis of the invoice No. 554 dated 26/3/04 has also to be treated as bogus. Though, the appellant have cited the judgments of the Tribunal in the case of Motherson Sumi Electric Wires vs. CCE, Noida (supra) and in the case of Luxmi Metal Industries vs. CCE, Delhi II (supra), on going through these judgments, I find that the same are not applicable. I, therefore, do not find any infirmity in the impugned order. The appeal is dismissed.
(Pronounced in the open court.) (Rakesh Kumar) Member (Technical) PK ??
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