Custom, Excise & Service Tax Tribunal
M/S Bhakti Alloys Pvt.Ltd vs Commissioner, Central Excise & Service ... on 23 September, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/176-177/2011-DB [Arising out of OIO No.12/Vadodara-I/MP/2010, dt.27.10.2010, passed by Commissioner of Central Excise & Customs, Vadodara] 1. M/s Bhakti Alloys Pvt.Ltd., 2. Shri Hemant N. Gokhale Appellants Vs Commissioner, Central Excise & Service Tax, Vadodara-I Respondent
Represented by:
For Appellant: Shri V.M. Doiphode, Advocate For Respondent: Shri Alok Srivastava, Authorised Representative For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing: 17.07.2015 Date of Decision: 23.09.2015 Order No. A /11338-11339/2015 dated 23.09.2015 Per: P.K. Das The relevant facts of the case, in brief, are that M/s Bhakti Alloys Pvt.Ltd. (the Appellant Company) were engaged in the manufacture of S.S. Flats, classifiable under Chapter 72 of the Central Excise Tariff Act, 1985. They were availing CENVAT Credit on the raw materials viz. Ferro Alloys, S.S. Scrap etc amongst others, under CENVAT Credit Rules, 2004. The Central Excise officers received information that two Bhavnagar based registered dealers viz. M/s Good Luck Empire and M/s Jenil Empire were engaged in trading of M.S./S.S./Aluminum Scrap and S.S. Flats, and fraudulently, passed CENVAT Credit to different buyers including the Appellant Company. On 03.12.2007, the Central Excise Officers, Headquarter Preventive, Vadodara-I, visited the factory premises of the Appellant Company and conducted stock verification and no dispute was found. On 03.12.2007, a statement of Shri Hemant N. Gokhale, Director & Authorised Signatory of the Appellant Company (Appellant No.2) was recorded. Thereafter, various statements of Shri Hemant N. Gokhale were recorded on different dates. The Appellants had supplied the records and documents to the Central Excise Officers for verification.
2. A show cause notice dt.09.12.2009 was issued, proposing to disallow the CENVAT Credit of Rs.71,09,522.00 alongwith interest and to impose penalty on the Appellant Company for the period 2006-07 and 2007-08 and also to impose penalty on Shri Hemant N. Gokhale, Director and Authorised Signatory of the Appellant Company . By the impugned order, the Adjudicating authority disallowed and confirmed the demand of CENVAT Credit of Rs.71,09,522.00 alongwith interest and imposed penalty of equal amount of CENVAT Credit and also appropriated the amount of Rs.8,73,012.00 as already paid by the Appellant Company. A penalty of Rs.5 lakhs under Rule 25 of CENVAT Credit Rules 2004 was further imposed on the Appellant Company. There is a penalty of Rs.5 lakhs on Shri Hemant N. Gokhale, Director & Authorised Signatory of the Appellant Company (Appellant No.2). Hence, both the Appellants filed these appeals before the Tribunal.
3. The learned Advocate appearing on behalf of the Appellants fairly submits that an amount of Rs.3,23,338.00 CENVAT Credit was erroneously availed on Furnace Oil and other issues, which they have reversed from CENVAT Account. Since, the issue involved is only of interpretation of the provisions of CENVAT Credit Rules 2004, and therefore, the penalty under Section 11AC of Central Excise Act, 1944 cannot be invoked.
3.1 He further submits that Shri Hemant N. Gokhale, Director & Authorised Signatory of the Appellant Company, (Appellant No.2 herein), in his statement dt.26.05.2008, as per RTO report, as shown by the investigating officer, stated that CENVAT Credit of Rs.5,49,674.00 availed on the basis of invoices, and the vehicle numbers mentioned therein, may not be capable to carry huge quantity of goods and they have reversed the said amount from the CENVAT account. It is categorically stated that they have reversed the amount on the basis of RTO report and they would contest the matter. It is submitted that they have availed the credit on the basis of the invoices issued by the dealers accompanied with the materials, duly received in their factory. It is revealed from the CENVAT account that the materials were used in the manufacture of final product, cleared on payment of duty. The Appellant paid the amount to the suppliers through cheques only and duly recorded in the ledger. The learned Advocate drew the attention of the Bench to the relevant portions of the various statements. The reasons for outstanding amount to the supplier were due to financial crisis and the Appellant Company ultimately paid the entire amount to the supplier. It is submitted that as evident from the ST-3 returns for 2006-07 and 2007-08 and the ledger copies that they paid the Service Tax on freight as recipient of services under the Rules. It is also submitted that there is no dispute about the existence of the supplier and genuineness of the invoices issued by them and therefore, there is no reason to deny the CENVAT Credit. The learned Advocate submitted the written submissions alongwith compilation of case laws, before the Bench.
4. The learned Authorised Representative on behalf of the Revenue reiterates the findings of the Adjudicating authority. He submits that the Appellant No.2 failed to produce the Lorry Receipts, Consignment Notes. In some cases, the RTO report would show that the vehicle numbers mentioned in the invoices, were Auto Rickshaws, not capable to carry heavy cargo. The Appellant might have co-related the input and output ratio based on the purchasing of the raw material/scrap from the open market. It is further submitted that the outstanding amounts were paid to the supplier, after issuance of the show cause notice. The learned Authorised Representative strongly relied upon the decision of the Tribunal in the case of Rajiv Alloys Ltd Vs CCE Chandigarh 2009 (236) ELT 124 (Tri-Del) and in the case of V.K. Enterprises Vs CCE Panchkula 2010 (249) ELT 462 (Tri-Del).
5. After hearing both the sides and on perusal of the records, we find that on 03.12.2007, the Central Excise officers visited the Appellants factory on the basis of information that the Appellant availed the CENVAT Credit on invoices issued by the two registered dealers viz. M/s Good Luck Empire and M/s Jenil Empire; Bhavnagar, without actual receipt of the goods. The learned Advocate contended that no shortage/excess of inputs or finished goods was found during the stock verification. The entire case was made out on the basis of various statements of the Appellant No.2 on different dates and the documents supplied by the Appellant Company.
6. On perusal of the various statements of the Appellant No.2 recorded on different dates, we find that by statement dt.03.12.2007, the Appellant No.2, on being specifically asked whether the material is actually arrived in the factory from the said two registered dealers and whether they have any documentary evidence of receiving such goods in their factory, it was stated that at times they received the materials and at times they did not receive the materials. He assured them to supply the documents in support of his contention. In statement dt.16.01.2008, the Appellant No.2 stated that they received all the inputs without any lorry receipts since 2004-05 till date at their factory. In statement dt.04.04.2008, the Appellant No.2 narrated the details of the manufacturing process and the list of machinery installed in their factory for manufacturing of the finished goods. It is categorically stated that the raw material, i.e. S.S.Scrap, Aluminum Scrap etc were received in their factory and fed into the furnace for melting at high temperature. In statement dt.16.04.2008, the Appellant No.2 was shown the various rules of CENVAT Credit Rules, 2004 and after going through the worksheets prepared by the Central Excise officers on the basis of records for denial of CENVAT Credit, the Appellant accepted that they have wrongly availed CENVAT Credit of Rs.1,90,908. It was stated that they have taken excess CENVAT Credit than actually admissible credit; in some cases, without duty paying documents, and also credit taken on Furnace oil, which is not an input, as they were using electric furnace in their factory for manufacturing of their final product. It was also stated that they have availed credit of Rs.1,90,908.00 due to lack of knowledge. In statement dt.26.05.2008, the Appellant No.2 was shown RTO Report and the Worksheet-II prepared by the Central Excise Officers showing the details of invoices, in which the vehicle numbers mentioned as Auto Rickshaws were not capable of carrying heavy load. The Appellant No.2 accepted that they have wrongly availed CENVAT amount of Rs.5.94 lakhs. On being asked regarding payment of Rs.5.49 lakhs, credit taken by them as detailed in worksheet-II, he stated that they would like to contest the issue. In statement dt.18.11.2009, the Appellant No.2 stated that they received the materials accompanied with Central Excise invoices, without lorry receipts. They maintained raw material stock register in the form of RG23A Part II, in which they have shown the receipt and consumption of raw material. In statement dt.27.11.2009, the Appellant No.2 explained the reasons for outstanding payments to the supplier of the raw material. In some cases, the supplier supplied inferior quality material at a higher rate and they did not agree on rate, the payment is outstanding for such a long period. In some cases, they did not make the payment due to financial crisis. It is also stated that they utilized the materials in their factory in the manufacture of finished goods. It is further stated that even in the case of inferior quality, they used the materials slowly and piecemeal over a period of time. The stocks were reflected in the records and books of account. Thereafter, a show cause notice was issued on 05.12.2009, proposing denial of CENVAT Credit alongwith interest and to impose penalties on the Appellants.
7. On perusal of the above statements and the submission of the learned Advocate, we find that the Appellant had accepted that they have wrongly availed CENVAT Credit of Rs.3,23,328.00 on Furnace Oil and other issues as mentioned in Annexure II of Show Cause Notice, which they have already reversed. They have further reversed the CENVAT Credit of Rs.5.49 lakhs after going through the RTO report and the worksheets prepared by the investigating officer. The learned Advocate submitted that they paid amount of Rs.5.49 lakhs and also stated in the statement that they will contest this issue. It is seen from the Annexure I (i) of the show cause notice that the CENVAT Credit of Rs.10,82,914.00 was denied on the basis of RTO report showing the invoices issued by the two Bhavnagar based dealers viz. M/s Good Luck Empire and M/s Jenil Empire mentioning vehicles, unable to carry the goods. The Appellant reversed the credit of Rs.5.49 lakhs against the said amount as mentioned in Annexure I(i). As per Annexure I(iii) of the show cause notice, CENVAT Credit of Rs.15,21,683.00 was denied, on the basis of RTO report in respect of invoices issued by other dealers/manufacturers. The Appellant No.2 in his statements in respect of invoices issued by 18 dealers/manufacturers as mentioned in Annexure I (iii) of Notice, stated that they received the goods without Lorry Receipts and duly recorded in Raw Material Stock Register in RG 23 A Part I. It is seen from the Adjudication order that a detailed verification was conducted against the invoices issued by the 18 dealers/manufacturers. In all these cases, the concerned jurisdictional Central Excise officers reported that the said suppliers were in existence or existed at the material time and the invoices issued by them were genuine. It also appears from the ledger account in respect of the said dealers for the respective period, submitted by the Appellant that no substantial payment is outstanding. It is evident from the records that on enquiry, the invoices mentioned in Annexure I(iii) are genuine. But, no investigation was conducted on the invoices at the end of the input supplier, as referred in Annexure I(i). On perusal of the Annexure I(i) and Annexure I(iii), we find that there were two types of vehicles mentioned therein. Some vehicles, such as Tata 1613/42, Delivery Van etc, were capable to carry the goods, but, the goods were overloaded (i.e. beyond the capacity). The other types of vehicles Bajaj Auto, Atul Auto etc were not capable to carry the goods. In the case of other types of vehicles, Bajaj Auto, Atul Auto etc, it may be concluded that the goods were not received by the Appellant and the onus shifted on to the Appellant to prove that the goods were duly received by them and used in the manufacture of their finished products. This view is supported by the decision of the Tribunal in the case of Ranjeev Alloys Ltd Vs Commissioner of Central Excise, Chandigarh (supra), as relied upon by the learned Authorised Representative of the Revenue. In that case, the verification reports were received from RTO, transportation of goods by vehicle like Scooters, Motor Cycles, Mopeds, Combines, Jeeps etc, which are incapable to carry goods. The Tribunal held that onus lies with the assessee. In the present case, the Appellant had taken a stand that they have received the goods accompanied with the invoices even the vehicles mentioned as Auto Rickshaws and there are decisions of the Hon'ble High Court and the Tribunal that the CENVAT Credit cannot be denied merely on the basis of the invoices indicating vehicle numbers of Auto Rickshaws. We find that the said case-laws would not be applicable in the present case, for the reason, the Appellant No.2 herein during investigation had stated the non-receipt of the goods on the invoices mentioned Auto Rickshaws. They have stated that they will contest the matter, but, they have not placed any material in support of their contention. In our considered view, the denial of CENVAT Credit on the basis of invoices mentioned the vehicle numbers Auto Rickshaws in Annexure I(i) and I(iii) is justified.
8. The vehicles such as Tata 1613/42, Delivery Vans etc as mentioned in invoices, are capable to carry the goods. Incidentally, in this case, the goods were overloaded, which is beyond the capacity of the vehicles. In such cases, it is difficult to say that the goods were not delivered. The Central Excise officers made investigation in respect of goods of Annexure I(iii) of show cause notice, it was found that the invoices issued by the suppliers are genuine and the appellant paid the amount to the supplier as evident from the ledger and CENVAT Account. In respect of the overloaded vehicles as mentioned in Annexure A 1(i) of the Notice, no investigation was done at the suppliers end. The Appellant placed the evidence of Raw Material Stock Register in RG23A Part I, showing receipt and utilization of inputs in the manufacture of final product. But, no further investigation was done to the supplier, vehicle owner/drivers etc. So, merely the goods were overloaded in vehicles would not prove non-receipt of goods, unless it is established by other evidences. At least, an enquiry should be made to vehicle owners/suppliers, which was not done in this case. We do not find force in the submissions of the learned Authorised Representative on this issue.
9. It is revealed from the Annexure I(ii) of the show cause notice that CENVAT Credit of Rs.41,81,587.00 was denied on the basis of invoices issued by the said two Bhavnagar based dealers viz. M/s Good Luck Empire and M/s Jenil Empire. The Adjudicating authority observed that the Appellant failed to produce the lorry receipts (LRs). The Appellant No.2 in the statements, had stated that they received the materials without lorry receipts since 2004-2005. They produced their CENVAT register and account to substantiate the receipt of raw material and used in the manufacture of final product. It is important to note that since 2004-2005, the Appellants had been receiving the goods without Lorry Receipts and the dispute was raised only for th period 2006-07 and 2007-08. It was contended by the Appellant that there is no material available to show that the Appellant procured the raw materials from outside. The Appellant also submitted the details of month-wise power consumption, in support of the manufacture of the finished goods. The Adjudicating authority observed that their claim is not acceptable as the input-output ratio could have been maintained by them from the material purchased from open market and it cannot prove that same were manufactured from the goods of impugned disputed invoices.
10. We are unable to accept such findings of the Adjudicating authority for the reason that the entire case was made out on the basis of various statements of the Appellant No.2 and RTO report. There is no investigation conducted at the suppliers end in respect of the invoices mentioned in Annexure I (i) and I(ii) of the Notice. The Central Excise officers gathered intelligence that two registered dealers fraudulently issued invoices. The input of intelligence must be verified by detailed investigation and by collecting evidences. In the present case, the officers visited the factory premises of the Appellant and recorded several statements of Appellant No.2 on different dates. The Appellants supplied the records and documents for verification. The Appellant No.2 after going through the RTO reports as mentioned in Annexure I(i) and I(ii), stated that they received the goods accompanied with invoices and duly recorded in their registers and accounts. The finished goods were cleared on payment of duty. It is noted that the demand as per Annexure I (ii) is not even based on RTO reports. At this juncture, the officers had not bothered to verify the invoices at the end of input supplier and vehicle owner/driver etc. But, such investigation was done only on the invoices issued by 18 dealers/manufacturers as mentioned in Annexure I(iii) of Notice and no discrepancy was found. Apparently, the Adjudicating authority proceeded on the basis that the Appellant manufactured the final product on the basis of the raw material purchased from the open market. But, there is no iota of evidence that the Appellant procured the raw materials from the open market. It is significant to note that during stock verification of inputs and finished goods, no discrepancy was found. On the contrary, the Appellant No.2 in his various statements had categorically stated that they received the inputs since 2004-05 without any lorry receipts. It is also stated that the payments were made to the suppliers through cheques. The learned Advocate, during the course of hearing, submitted that copies of ST-3 returns for the year 2006-07 and 2007-08 and that they have paid the freight charges. The findings of the Adjudicating authority are merely on the basis of assumption and presumption, without any material. So, we do not find any reason to deny the amount of CENVAT credit as mentioned in Annexure I(ii) of show cause notice.
11. In the case of M/s Banian and Berry Bearings Pvt.Ltd. Vs Commissioner of Customs, Ahmedabad, the Tribunal, vide Final Order No.A/171 to 181/WZB/AHD/2008, dt.06.02.2008, observed that no reliable evidence of actual diversion of the goods has been noticed. Many discrepancies which throw suspicion have been noticed. However, the same have not been followed up for further investigation and the Tribunal allowed the appeal of the Assessee. The Hon'ble Gujarat High Court upheld the said decision of the Tribunal, by judgment dt.15.09.2009 in Tax Appeal No.1123 of 2008. In that case, the learned Counsel for the assessee had placed reliance on judgment of Punjab & Haryana High Court in the case of Commissioner of Central Excise, Chandigarh Vs. Neepaz Steels Ltd reported in 2008 (230) ELT 218 (P&H) and in the case of Commissioner of Central Excise, Chandigarh Vs Nirmal Kumar Aggarwal, reported in 2008 (230) ELT 47 (P&H). The Hon'ble High Court observed that the principles laid down by Punjab & Haryana High Court would squarely apply to the facts of the present case and rejected the appeal filed by the Revenue.
12. In the case of CCE Ludhiana Vs Talson Mills Store 2015 (315) ELT 415 (P&H), the Honble Punjab & Haryana High Court observed that the Revenue was required to hold an independent enquiry against the respondent and dismissed the appeal filed by the Revenue. In the case of CCE Vs Saakeen Alloys Pvt.Ltd 2014 (308) ELT 655 (Guj.), the Hon'ble Gujarat High Court held that in the case of clandestine removal of excisable goods, there needs to be positive evidence for establishing the evasion and on facts, there is no material reflecting the purchase of excess raw material, storage of inputs, excess consumption of resources etc and the confessional statements have been retracted soon after being recorded. It has further been held that confessional statement cannot form foundation for levy of excise duty, much less than the retracted statement. In the present case, there is no evidence available on record that the Appellant procured the goods from the open market for manufacture of final product.
13. The main contention of the learned Authorised Representative for the Revenue is that in some cases, the Appellant had paid the outstanding amount to the supplier after issue of show cause notice. It is noticed that the Appellant No.2 in his statement explained the reasons for delay of payment to the suppliers and subsequently the payment was made to the suppliers as recorded in the Adjudication order. The delay of payment to the supplier cannot be reason to conclude non-receipt of the goods.
14. In the case of Sri Suguna Machine Works, Unit-II Vs CCE Coimbatore 2014 (306) ELT 500 (Tri-Che.), the Tribunal held that the Revenue disputed the value of goods, which cannot be the reason for denial of CENVAT Credit. It has been observed as under:-
6.?It appears that the appellant issued the purchase order for purchasing the CI scrap. They received the CI scrap accompanied with invoices indicated as CI scrap. Rule 9(3) of the Cenvat Credit Rules as it stood at the material period provides that the manufacturer of excisable goods taking Cenvat credit on inputs shall take reasonable steps to ensure that the input or capital goods in respect of which he has taken the Cenvat credit on which the appropriate duty of excise as indicated in the documents accompanying the goods has been paid. The Explanation to Rule 9(3) of the said Rules provides that the manufacturer shall be deemed to have been taken reasonable steps if he satisfies himself about the identity and address of the manufacturer or supplier as the goods may be showing the documents evidencing payment of excise duty either from his personal knowledge or on the basis of the certificate given by a person. In the present case, there is no dispute that the dealer is registered under Central Excise Rules and they are in existence in their address. There is no material available that the Cenvat invoices accompanied with goods are not genuine. So, in my considered opinion, the appellant had satisfied the conditions as provided under Rule 9(3) of the said Rules. Hence, there is no reason to deny the credit on the appellant. The dispute raised by the Revenue of value of the goods, cannot be reason for denial of Cenvat credit subject to fulfilment of condition of Cenvat Credit Rules. Apart from that, the transaction of the goods at a lower price is within the domain of buyer and seller.
15. On the identical situation, the Tribunal in the case of Hiren Aluminum Ltd Vs Commissioner of Central Excise, Valsad 2009 (245) ELT 386 (Tri-Ahmd), observed as under:
15.?At this stage we may discuss the various decisions relied upon by the ld. Advocate. Tribunal in the case of M/s. Tejwal Dyestuff Industries [2007 (216) E.L.T. 310 (Tri.-Ahmd.)], by majority decision has held that if it is not disputed that the inputs were used for the final product and statutory returns were filed, the lethargy of the Revenue officers in not verifying the relevant statutory records and invoices, as to what exact quantity of raw materials was used in the final product and that in how many final products such inputs could have been used, altogether create a doubt as to the correctness of the contents of the statements. The preponderance of probabilities in the context of all other evidences vis-a-vis the confessional statements do not lead to the conclusion of inadmissibility of Modvat/Cenvat credit, as reached by the Commissioner. In the present case also, as we have already discussed the entire case of the Revenue is based only on wrong mentioning of vehicle numbers in the invoices issued by the dealers, which stand duly explained by the appellant and there being no other effective evidence to show that such inputs were not used in the manufacture of the final product, the denial of Modvat credit would not be justified. Similarly in the case of CCE, Jalandbar v. Bhawani Shanakar Castings Ltd. [2006 (200) E.L.T. 540 (Tri. - Del.)], it was held that merely because wrong vehicle numbers were given in the invoices, the same cannot be held to be fake and non-receipt of inputs under the cover of the same cannot be upheld. Further, we find that the Tribunal in the case of CCE, Chandigarh v. Shakti Roll Cold Strips Pvt. Ltd. [2007 (80) RLT 267 (CESTAT-Del.), by taking note of the earlier decisions of the Tribunal, has held that the credit cannot be denied only on the ground that vehicle numbers given in the invoices were not of the trucks, when payment for goods was made by cheque/draft and inputs were used in the manufacture of final product which were cleared on payment of duty, RT-12 returns were assessed and there was no evidence of use of alternative inputs. Accordingly, Tribunal rejected the appeal filed by the Revenue. The matter was taken up by the Revenue before the Honble High Court of Punjab & Haryana, who vide their judgment as reported in 2008 (229) E.L.T. 661 (P&H) = 2008 (87) RLT 793 (P&H) rejected the same. Similarly in the case of M/s. Steel Tubes of India Ltd. v. CCE, Indore [2008 (87) RLT 630 (CESTAT-Del.)], it was held that merely because vehicle numbers mentioned in some of the invoices are not of transport vehicles, the same is not sufficient to deny the credit when there is evidence of receipt and utilization of inputs and no evidence of diversion is available.
16. In the case of Motabhai Iron & Steel Industries Vs CCE Ahmedabad-II 2014 (302) ELT 69 (Tri-Ahmd.), the Tribunal held as under:-
I also find that it is an undisputed fact that all the purchases were duly recorded in the statutory books of the Appellant and the goods were also found to be entered in statutory records of the Appellant. No investigation has been made at unit of M/s. Bajrang which could have supported the findings of the adjudicating authority. None of the consignor of the goods has denied the clearance of goods to M/s. Bajrang. There is no evidence which can show that the records maintained by the Appellant are not correct. Only on the basis of statement of some of the transporters, the huge credit is sought to be disallowed whereas the statements are in isolation with no corroboration. I therefore hold that the impugned order for disallowance of credit to the Appellant is not sustainable. Accordingly the demands are set aside.
In the peculiar facts and circumstances of this case and in the absence of cogent evidence, the demands are not sustainable, as a consequence the penalties upon M/s. Bajrang and other Appellants are also not sustainable and are accordingly set aside. I therefore allow the appeals with consequential relief, if any.
17. We find force in the submissions of the learned Authorised Representative for the Revenue that the Appellant admitted that they have wrongly availed CENVAT credit on the basis of invoices without receipt of the goods, and, therefore, imposition of penalty of equal amount of duty, under Section 11AC of Central Excise Act, 1944 is warranted. Regarding the imposition of penalty on the Appellant No.2, the learned Advocate submitted that the Appellant No.2 appeared before the Central Excise Officers and supplied the documents time to time. They had paid duty at the instance of the officers. There is no material available, he had knowledge of the alleged irregularity. We have already stated above that the denial of CENVAT credit on inputs availed on the basis of invoices showing Auto Rickshaw is justified and therefore, the imposition of penalty on the Appellant No.2 is required to be re-examined.
18. In view of the above discussion, the demand of CENVAT Credit alongwith interest and penalties on the Appellant Company to the extent of CENVAT Credit availed on the basis of invoices as mentioned in the Annexure I to the Show Cause Notice, other than vehicle numbers mentioned Auto Rickshaws, are set aside. The matter is remanded to the Adjudicating authority to determine the demand of duty alongwith interest and penalty on the Appellant Company in so far as the CENVAT Credit availed on the basis of invoices showing vehicles as Auto Rickshaws in Annexure I(i), I(iii) and also the amount of Rs.3,23,338.00 as mentioned in Annexure II of Show Cause Notice. As the appeal of the Appellant Company is partly remanded to the Adjudicating authority, the imposition of penalty on the Appellant No.2 would also be considered by the Adjudicating authority. The appeal filed by the Appellant Company is disposed of in the above terms. The appeal filed by the Appellant No.2 is allowed by way of remand.
(Pronounced in open court on 23.09.2015) (P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) cbb 17