Custom, Excise & Service Tax Tribunal
M/S.Kashish Products Impex Pvt. Ltd vs Cce, Faridabad on 1 September, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. BENCH-,,,,,SM Excise Appeal No.E/2038/09-SM [Arising out of Order-in-Appeal No.30 to 32/CE/Appl/DLH-IV/2009 dated 06.04.2009 passed by the Commissioner of CE (Appeals), Faridabad]. M/s.Kashish Products Impex Pvt. Ltd. Appellant Vs. CCE, Faridabad Respondent
Present for the Appellant : Ms. Sukriti Das, Advocate Present for the Respondent: Shri. B.L. Soni,D.R. Coram: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER Date of Hearing/Decision:01.09.2011 ORDER NO. _______________ DATED:________ PER: D.N.PANDA Ld. Counsel submits that the show cause notice did not indicate the provision of law under which penalty can be demanded against the appellant. For that reason, the appellant made application to the authority to inform under which provision penalty was proposed to be levied. By letter dated 21.5.08 the authorities specified that penal action was proposed for the alleged acts of omission and commission detailed in the show cause notice and appears to be imposable for the said acts under rule 26 of Central Excise Rules, 2002. The appellant accordingly prayed for waiver of penalty setting aside the impugned order. It is also the prayer of appellant that when sub-rule (2) was enacted in rule 26 dealing with issuance of excise invoice with effect from 1.3.07 the past act should not be brought to the ambit of penal consequence. She relies on the judgement of Amrit Foods vs. CCE, U.P. reported in 2005 (190) ELT 433 (S.C.).
2. Ld. DR on the other hand says thatwhen goods did not move, the documents only made, the manufacture is not entitled to the cenvat credit claimedfraudulently. Therefore, the appellate authority has rightly dismissed the appeal of the appellant.
3. Heard both sides and perused the record.
4. Perusal of para 3 of the appellate order indicates that M/s. Chand Industry was beneficiary of the fraud committed by the appellant. Investigation came to know about spurious document issued by the appellant when they recorded the statement of Shri Naresh Guleria, Director of the appellant on 26.5.2006. The appellant categorically admitted that goods were not delivered but only invoices were issued to the manufacture M/s. Chand Industries It was also said in the statement that there was no manufacture of PVC compound and master batches by the appellant for which the goods could not move. The piece of evidence recorded under section 14 of Central Excise Act 1944 is a cogent evidence against the appellant and cannot be brushed aside following the Apex Court judgement in the case of CCE, Mumbai vs. Kalvert Foods India Pvt. Ltd. reported in 2011 (270) ELT 643 (S.C.). When the fraud surfaced that has nullified every solemn act and all that emanate out of fraud should extinct because fruit of forbidden tree is always forbidden. When the appellant could not produce evidence to defend properly on 26.5.06 while recording statement in the course of judicial proceeding under section 14 of Central Excise Act 1944, there is nothing rebuttal today to discard the statement of the director of the appellant. Ld. Counsel when relies on the decision of Apex Court in Amrit Foods case it should show that it has acted in all fairness in the eyes of law. Therefore, when the Revenue disclosed that the omission and commission brought the appellant to the fold of penalty due to fraud committed against Revenue, the appellant has no scope to get the benefit of judgement of the Apex Court because fraud nullifies everything. Such a ground itself is only to hold that the appellant had fraudulently issued the invoices to enable the beneficiary thereto to be enriched at the cost of Revenue. When fraud nullifies a decree, the appellant should face penalty for which the appeal is dismissed.
[Dictated & Pronounced in the open Court].
(D.N.PANDA) JUDICIAL MEMBER Anita