2011 (1) TMI 300 - HC - Central Excise

SSI - Cenvat Credit - Found that two concerns namely appellant M/s Box & Carton India Pvt. Ltd. (BCI) and Super Fine Packaging (SFP) were one unit and claim of the assessee for treatment of SFP as Small Scale Industry (SSI) was not acceptable - Claim for CENVAT Credit was also rejected on the ground that BCI failed to furnish documents showing procurement of raw material by SFP or showing that SFP had made the requisite export sale. Rectification - Thereafter the appellant filed an application for rectification u/s 35C(2) of the Act - Tribunal was justified in observing that the Commissioner had gone into the issue and found that there was no acceptable evidence in support of claim for export sales and purchase of raw material on which excise duty has been paid - Hence the Tribunal itself has found that there was no mistake attributable to the Tribunal - The appeal is dismissed against of assessee.

Issues:
1. Dismissal of Rectification Application by the Tribunal
2. Merger of orders by the CESTAT and Supreme Court
3. Applicability of judgments in different cases
4. Application of Res Judicata
5. Denial of Input Credit for failure to produce Invoices
6. Evaluation of ROM by the Tribunal
7. Prima facie evidence from Panchnama

Issue 1: Dismissal of Rectification Application by the Tribunal
The appellant filed a rectification application under Section 35C(2) of the Act, arguing that necessary details for claiming Cenvat Credit were not considered by the Tribunal. The Tribunal, citing the Abhai Maligai Partnership Firm case, held that since the appeal was dismissed, the issue could not be revisited. The Tribunal also noted that there was no evidence to show that the Commissioner was in possession of the invoices as claimed by the appellant.

Issue 2: Merger of orders by the CESTAT and Supreme Court
The appellant raised concerns about the merger of the CESTAT order with the Supreme Court order without a detailed hearing on merits. The Tribunal found that the Commissioner had already examined the issue of lack of evidence supporting the claim for export sales and procurement of raw materials, leading to the dismissal of the rectification application.

Issue 3: Applicability of judgments in different cases
The appellant argued that the judgments in the cases of Kunhayamed vs State of Kerala and U.J.S. Chawla vs State of Punjab operated in different spheres. However, the Tribunal found that the Commissioner's decision was based on the lack of evidence supporting the appellant's claims, which aligned with the findings in the present case.

Issue 4: Application of Res Judicata
The Tribunal considered whether the contentions raised in the rectification application, falling within its jurisdiction, were barred by principles akin to Res Judicata for not being raised before the Supreme Court. The Tribunal's decision was based on the lack of evidence provided by the appellant to support their claims.

Issue 5: Denial of Input Credit for failure to produce Invoices
The appellant contended that the denial of Input Credit due to failure to produce relevant Invoices, which were seized by the Department, was unjust. However, the Tribunal found that there was no acceptable evidence to support the claim for Input Credit, as the required documentation was not furnished by the appellant.

Issue 6: Evaluation of ROM by the Tribunal
The Tribunal assessed the appellant's Request for Oral Modification (ROM) and determined that it did not establish a strong case on merits, leading to the dismissal of the appeal.

Issue 7: Prima facie evidence from Panchnama
The appellant argued that the Panchnama constituted prima facie evidence of the seizure of documents by the Department, shifting the burden of proof. However, the Tribunal found that the lack of supporting evidence from the appellant regarding the procurement of raw materials and export sales led to the rejection of the claim for CENVAT Credit.

In conclusion, the Tribunal dismissed the appeal, stating that no substantial question of law arose based on the findings and lack of evidence presented by the appellant to support their claims.

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