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TMI Blog2010 (6) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Shiva Industrial Corporation, M/s. Metal Trading Co. and Shri Bihari Ji Steels, who in turn sold the materials under their cenvatable invoices to M/s. Sai Ram Industries, M/s. Velmoid Plastics (P) Ltd., M/s. Duro Engineering Works, M/s. Khurbros Automotive Industries, M/s. J.S. Industries and M/s. Super Steel Engineers, who took cenvat credit on the basis of their invoices. The Department's allegation is that the appellants M/s. Gautam Steel Traders had not purchased the materials directly from the manufacturer M/s. Swastika Pipes Ltd., but had purchased the same from M/s. Rameshwar Das Devi Dayal (P) Ltd., who in turn had purchased from M/s. Swastika Pipes Ltd. and this fact is clear from the invoices of M/s. Swastika Pipes Ltd. as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,194/- Rs. 2,232/-, 17,937/- and Rs. 9,586/- were confirmed alongwith interest against M/s. Velmoid Plasties (P) Ltd., M/s. Duro Engineering Works, M/s. Khurbros Automotive Industries, M/s. J.S. Industries, M/s. Super Steel Engineers and M/s. Sai Ram Industries respectively. Besides this, the penalties were imposed on them as well as on the appellants and on M/s. Golden Steal Co., M/s. Shiva Associates, M/s. Shiva Industrial Corporation and M/s. Metal Trading Co. and Shri Bihari Ji Steels. 1.3 On appeal to the Commissioner (Appeals), the Commissioner (Appeals) set aside the Assistant Commissioner's order regarding denial of credit to the manufacturers and allowed the cenvat credit and also set aside the penalties on the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively; that there is no justification for not treating the appellant as first stage dealer and on this basis upholding the penalty on them, that the appellants had never concealed any fact; that in the ER-1 returns filed by the appellants, the details of the invoices regarding purchase of the goods from M/s. Swastika Pipes Ltd. had been mentioned but no objection was raised at any point of time questioning their status as first stage dealer; that the department has not filed the appeals against the part of the Commissioner (Appeals)'s order wherein the Commissioner (Appeals) has accepted M/s. Golden Steel Co., M/s. Shiva Associates, M/s. Shiva Industrial Corporation, M/s. Metal Trading Co. and Shri Bihari Ji Steels as second stage dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the first stage dealers and could not issue invoices as first stage dealers, is clear from the statement dated 27-5-2005 of Shri Kamal Kishore Sharma, Accountant of the appellants, wherein he stated that he had issued such invoices to other dealers to enable them to pass on the Cenvat credit but he felt that the appellants ( M/s. Gautam Steel Traders) were second state dealer in respect of invoices of M/s. Swastika Pipes Ltd.; that the appellant ( M/s. Gautam Steel Traders) had not specifically mentioned the stage of the invoices raised by them to the registered dealers; that there was no tick mark or specification as to whether the invoices had been raises as a first stage dealer or second stage dealer; that this admission of the account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer, under cover of an invoice; or (ii) an importer or from the depot of an importer or from the premises of the consignment agent of the importer, under cover of an invoice. 7.1 As per definition of "second stage dealer" given in Cenvat Credit Rules, 2004, "second stage dealer means a dealer who purchases the goods from a first stage dealer. 7.2 There is no doubt about the fact that in all these case the ' appellants purchased the goods from M/s. Rameshwar Dass Devi Dayal (P) Ltd. and not directly from M/s. Swastika Pipes Ltd. In the invoices of the manufacturer M/s. Swastika Pipe Ltd., M/s. Rameshwar Das ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t received the duty paid goods directly from M/s. Rashtriya Ispat Nigam Ltd., who had issued invoices mentioning their Long Term Contractor (LTC) as a "customer" and the appellant as a "consignee", they have to be treated as first stage dealer. But the LTC in this case could be a consignment agent of RINL. In the persent case, there is no such evidence that M/s. Rameshwar Das Devi Dayal Pvt. Ltd. were consignment agents of M/s. Swastika Pipes Ltd. Therefore the; judgment cited by the appellant is not applicable to their cases. The statement of Shri Kamal Kishore Sharma shows that the appellants in respect of the goods purchased from M/s. Swastika Pipes Ltd. and sold to other registered dealers, M/s. Golden Steel Co., M/s. Shiva Associates, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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