Custom, Excise & Service Tax Tribunal
Varsha Forgings Ltd vs Aurangabad on 22 June, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPLICATION NOS: E/COD-220/2010 & E/Stay-2363/2010
APPEAL NO: E/2124/2010
[Arising out of Order-in-Appeal No: AGS(72)36/2010 dated 22/04/2010 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, 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?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Varsha Forgings Ltd.
Appellant
Vs
Commissioner of Central Excise & Customs
Aurangabad
Respondent
Appearance:
None for the appellant Shri A.K. Prabhakar, Superintendent (A. R.) for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Date of hearing: 22/06/2012 Date of decision: 22/06/2012 ORDER NO: ____________________________ The appeal, stay application and COD application are directed against the Order-in-Appeal No: AGS(72)36/2010 dated 22/04/2010 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad.
2. I take up the COD application first. There is a delay of more than 5 months in filing the appeal. The appellant submits that they were awaiting for a letter from the jurisdictional Superintendent with respect to the duty liability to be discharged, which they never received and in view of this, the delay occurred in filing the appeal. The reason stated appears to be genuine and I am satisfied with the same. Accordingly, I condone the delay in filing the appeal.
3. The appellant M/s. Varsha Forgings Ltd., Aurangabad, received a consignment of duty-paid inputs from M/s. Rashtriya Ispat Nigam Ltd., Pune vide invoice No. 2007005407 dated 05/12/2007 which was transported vide Truck No. MH-06-K-1000. During the course of transportation, all the documents including the duty paying documents were lost in transit by the driver of the truck and the driver lodged a complaint with the Sonai Police Station., Ahmednagar.
3.1. The appellant vide letter dated 19/12/2007 along with copies of FIR, affidavit and Xerox copies of the invoices, informed these facts to the department and requested for permission to take credit which was never given. In the meanwhile, the appellant took CENVAT credit amounting to Rs. 57,792/-. The learned Assistant Commissioner rejected the assessees request and denied the credit and, thereafter, issued a show cause notice dated 20/10/2009 demanding reversal of CENVAT credit along with interest thereon and also for imposition of equivalent amount of penalty under Rule 15 read with Section 11AC. The notice was adjudicated vide order dated 07/01/2010 wherein the demands were confirmed along with interest and a penalty of Rs. 10,000/- was imposed under Rule 15.
3.2. The appellant preferred an appeal before the Commissioner (Appeals) who directed the appellant to make pre-deposit of the duty demanded. Inasmuch as the appellant failed to pre-deposit the amount, the appeal was dismissed for non-compliance to Section 35F of the Central Excise Act, 1944. Hence the appellant is before me.
3.3. Subsequent to the impugned order, the appellant reversed the CENVAT credit involved in the matter.
3.4. None appeared for the appellant.
4. I have carefully gone through the appeal memorandum and take up the appeal for consideration and disposal.
4.1. This is a case where the original documents were lost in transit by the truck driver who was transporting the goods and the truck driver, on noticing the loss, filed a FIR with the Police Station and documentary evidence are available to this effect. When the original documents are lost, the only recourse that was available to the appellant was to get a copy of the same from the supplier and take credit on the basis thereon. The appellant requested the Assistant Commissioner to grant permission for taking credit. However, the jurisdictional authorities rejected the request of the appellant. This is a case of pure and simple harassment to the assessee. If the Assistant Commissioner wanted verification of the duty payment, he could have taken up the matter with the jurisdictional authorities at the suppliers end inasmuch as the details of the invoices are available. Instead of doing that, the appellant was served with a show cause notice leaving to avoidable adjudication. Powers of adjudication are given to quasi judicial authorities to sub-serve justice and not to deny them. In the instant case justice has been completely denied to the appellant. Further, the demand was also barred by time inasmuch as the notice has been issued beyond the normal period. The lower appellate authority, without even understanding the basic facts of the case directed the appellant to pre-deposit the entire amount which was not deposited and which resulted in dismissal of the appeal.
5. In these facts and circumstances, the entire order needs to be set aside. Inasmuch as the appellant has taken credit on the strength of photocopy of the invoices issued by the supplier, original of which was lost in transit and evidence to this effect was available on record, the appellant has rightly taken the credit in the absence of any evidence to the contrary adduced by the department. Accordingly, the appeal is allowed with consequential relief.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) */as 5