2025 (6) TMI 681 - AT - Central Excise

Recovery of CENVAT Credit availed - issuance of Paper Invoices to the appellant without actually dispatching any goods - corroborative evidence exists to prove that there was no actual movement of goods but the entire transaction was on paper only or not - extended period of limitation - HELD THAT - Out of 160 transactions between the Vendor and the appellant the Department could get hold of the letter/statements of only 70 vehicle owner. Thus there is no adverse statement in respect of 90 transaction. Even in respect of 70 Vehicles there are some replies which cannot be directly taken as evidence since they are not statements given under Section 14 of the CEA 1944. Even in cases where the statements have been recorded the persons recording the statements have not reiterated that they have given such statement out of their free will before the Adjudicating authority. Hence there are no such statements / letters to have any evidentiary value whatsoever. Viewed with the fact that the Revenue could lay hands only on 70 out of the 160 vehicle owners it is found that the verification is not even complete in respect of all the transactions. On this ground itself the proceedings are vitiated and liable to be set aside. The appellant has time again pleaded about the freight being paid by way of vouchers and payment to the vendor being made through banking channel. The relevant documents were provided to the investigating officials and to the adjudicating authority. The appellants have produced the copies of the Ledger pertaining to the Vendor showing the details of the Invoices raised by the Vendor and payments made by the appellant through banking channels. The Revenue has not brought in any evidence to the contrary. From the Show Cause Notice it is seen that the Vendor Shree Ganesh Forging Company has not been made a co-noticee at all. Only the partner of the vendor has been made co-noticee for playing his role in the alleged contraventions. For all practical purposes the partner is a different person from the partnership firm unlike in the case of proprietorship firm. Admittedly the present proceedings have been taken up on the sole ground that this Vendor has misstated the description of goods and has carried out only paper transaction. There is nothing to indicate from the SCN that the Vendor had not accounted for these Invoices with his jurisdictional officials - By non- making of the vendor as a Co-noticee to enable them to counter the allegation that they have only carried out paper transaction is contrary to the statutory provisions as well as principles of natural justice. In such a case the present proceedings against the appellant are erroneous and would have no legal legs to stand on. Even on this ground the Revenue s case fails. Extended period of limitation - HELD THAT - The Revenue has failed to bring in any cogent evidence to the effect that the appellant has suppressed any factual details so as to invoke the extended period provisions. Hence the confirmed demand for the extended period is legally not sustainable on account of time bar. Accordingly the appeal of the company allowed even on account of limitation. Penalty - HELD THAT - Since the appeal filed by the appellant company allowed both on merits as well as on account of limitation the penalty imposed on the Director of the company also does not sustain. Conclusion - i) The appellant produced sufficient documentary evidence to rebut the Department s allegations and the Department failed to properly investigate or consider the factual evidence. Therefore the demand on the ground of non-receipt of goods was not sustainable. ii) The Department s failure to consider the appellant s documentary evidence and the incomplete verification vitiated the proceedings. iii) Since the Department failed to establish such suppression the invocation of extended limitation was held to be legally unsustainable. iv) The vendor was not given opportunity to respond to allegations of paper transactions despite the entire proceedings being premised on the vendor s conduct. v) Since the demand was set aside on merits and limitation grounds the penalty imposed on the Director was also held unsustainable and was set aside. Appeal allowed.

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in the judgment are:

(a) Whether the Cenvat Credit availed by the appellant on consignments of MS Round, TMT Cutting, end cutting, etc., is recoverable on the ground that the goods were not physically received but only paper invoices were issued by the vendor.

(b) Whether the investigation and evidence collected by the Department, including statements of vehicle owners and other corroborative material, are sufficient and reliable to confirm the demand.

(d) Whether the failure to make the vendor a co-noticee in the proceedings against the appellant violates statutory provisions and principles of natural justice.

(e) Whether the penalty imposed on the Director of the appellant company is sustainable in light of the findings on merits and limitation.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a): Recovery of Cenvat Credit on ground of non-receipt of goods

The relevant legal framework includes the provisions of the Central Excise Act, 1944, and the Cenvat Credit Rules, which permit credit only if inputs are actually received and used in manufacture. The Department alleged that the appellant availed Cenvat Credit on inputs not physically received, based on purported recovery of documents from the vendor indicating issuance of paper invoices without actual dispatch.

The Court noted that the appellant produced valid Central Excise Invoices showing Assessable Value, Excise Duty, and VAT paid by the vendor, who filed returns and paid duty accepted by jurisdictional authorities. The appellant also maintained statutory books (RG 23 A Part I and II) and ER 1 Returns reflecting receipt and utilization of inputs. Payments to the vendor were made through banking channels, and freight payments to transporters were supported by vouchers and service tax paid on reverse charge basis.

The Department's investigation, however, was limited to statements from only 70 vehicle owners out of 160 transactions, many of which were not recorded under Section 14 of the CEA 1944, and lacked affirmation under Section 9D regarding voluntariness. The Court found these statements lacked evidentiary value. Further, the Department did not investigate input-output ratios or verify whether the appellant could have manufactured finished goods without inputs from the vendor, nor did it examine whether the appellant procured inputs elsewhere.

The Court held that the appellant produced sufficient documentary evidence to rebut the Department's allegations, and the Department failed to properly investigate or consider the factual evidence. Therefore, the demand on the ground of non-receipt of goods was not sustainable.

Issue (b): Sufficiency and reliability of Department's investigation and evidence

The Department relied heavily on statements of vehicle owners denying engagement with drivers or receipt of freight payments, recorded 2 to 5 years after the transactions. The appellant argued that such delayed statements could not be reliable and were not corroborated by any other evidence. The Department did not secure statements from all vehicle owners, nor did it conduct searches or recover private records indicating cash transactions to rebut banking channel payments.

The Court found the investigation incomplete and inadequate, noting the absence of adverse statements for 90 out of 160 transactions and the lack of proper evidentiary value of recorded statements. The Department's failure to consider the appellant's documentary evidence and the incomplete verification vitiated the proceedings.

Issue (c): Invocation of extended period of limitation

The Show Cause Notice was issued invoking extended period provisions. The appellant contended that no suppression or misstatement was established by the Department, as all transactions were recorded in statutory books and monthly returns, audited by the Department, with no prior query raised. The Department did not produce evidence of suppression or concealment necessary to invoke extended limitation.

The Court relied on precedent that extended limitation can be invoked only upon proof of suppression or misstatement, and not on assumptions. Since the Department failed to establish such suppression, the invocation of extended limitation was held to be legally unsustainable.

Issue (d): Non-inclusion of vendor as co-noticee

The Department made the partner of the vendor a co-noticee but did not make the vendor firm itself a co-noticee. The Court observed that the vendor is a distinct legal entity from its partner and that non-inclusion of the vendor violated statutory provisions and principles of natural justice. The vendor was not given opportunity to respond to allegations of paper transactions, despite the entire proceedings being premised on the vendor's conduct.

Further, the vendor's returns and duty payments were accepted by authorities, and there was no indication that the vendor had not accounted for the invoices. The Court held that this procedural lapse rendered the proceedings against the appellant legally unsustainable.

Issue (e): Penalty on Director

Since the demand was set aside on merits and limitation grounds, the penalty imposed on the Director was also held unsustainable and was set aside accordingly.

3. SIGNIFICANT HOLDINGS

"We do not find such statements / letters to have any evidentiary value whatsoever. Viewed with the fact that the Revenue could lay hands only on 70 out of the 160 vehicle owners, we find that the verification is not even complete in respect of all the transactions. On this ground itself the proceedings are vitiated and liable to be set aside."

"The appellant has produced sufficient number of evidence from their side in their defence. On the other hand, the Revenue not only failed to properly investigate the issue, but also did not consider the factual evidence before confirming the demand."

"If the Dept alleges that the appellants have not received the inputs in question, in order to undertake the manufacturing activity, the appellants should have received such goods from other third party on cash payment basis. No evidence to this effect has been found by the Revenue during their investigation."

"By non- making of the vendor as a Co-noticee, to enable them to counter the allegation that they have only carried out paper transaction, is contrary to the statutory provisions as well as principles of natural justice. In such a case, the present proceedings against the appellant are erroneous and would have no legal legs to stand on."

"It is well settled fact that for invoking the extended period of limitation suppression/ misstatement etc. must be established by the Department, and it cannot be based on presumption."

"The confirmed demand is legally not sustainable on merits and on account of time bar."

"Since we have allowed the appeal filed by the appellant company both on merits as well as on account of limitation, the penalty imposed on the Director of the company also does not sustain."

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