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M/s Shyam Metal Manufacturing Pvt. Ltd. Versus Commissioner of Central Excise, Thane-I

2016 (9) TMI 181 - CESTAT MUMBAI

Cenvat credit - procurement of scrap - availed inadmissible Cenvat credit - getting invoices without receiving the goods in the factory premises with the aid of other noticees - Held that:- it is found that the investigation proceedings, modus operandi and players involved were mostly common. From the order dated 26.6.2005, it is also found that the allegations and the defense of the various appellants are also the same. Therefore, by following the decision of division Bench of this Tribunal in .....

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mmadbhai Abdullali Master, (vi) Shri Mohsin H Memon & (vii) Shri Harikrishna B Sonej. 2. The facts narrated in the impugned order are as follows: - 2.1 The Appellant No.1. procure their requirements of duty-paid scrap directly from the manufacturers including ship-breaking units and also through registered & unregistered dealers in the open market. From the records, it is observed that for the procurement of the scrap, the Appellants No. 1,2 & 3 also take the assistance of the broker .....

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her noticees. 2.2 The Appellant No.2, Shri Bharat Bhushan Kaushik, is one of the Director of the Appellant No. 1 and is involved in the day to day affairs of the Company, the Appellant No.3, Shri Sunil Agarwal, is the former Director of Shri Shayarn Metal Mfg. Pvt. Ltd. who was looking after entire accounts activities of their Company and purchase of various raw materials required in their factory of the Appellant No.1. The Appellant No. 4, Shri Ramavatar K. Agarwal, is the Proprietor of M/s. Ma .....

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that M/s. Aarkay Manufacturing Pvt. Ltd. and subsequently, the Appellant No. 1 were availing inadmissible Cenvat Credit on the strength of Invoices issued by M/s. Jindal Iron & Steel Company Ltd., Vasind ( i.e. M/s. JISCO) and/or M/s. Jindal Steel & Alloys Ltd., Vasind (i.e, M/s. JSAL) without actually receiving the goods mentioned in the said invoices in their factory premises. Accordingly, the officers of Central Excise, ThaneI Commissionerate searched the office premises of the Appell .....

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r premises and the same were given to them by M/s. Diamond Roadways and the details of the person to whom the goods were sold were given to him on phone, and, accordingly, they make the entry in the register. He further deposed that the letter head of M/s. Harisons Steel which was found in their premises, was left by the representatives of the company, for preparing the deliver orders used for taking delivery from M/s Ispat Industries and M/s JISCO. He also deposed that he knew Shri Shantital Um .....

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ral Excise Act, 1944 on 10.12.2003, wherein he deposed that he earn commission of arrangement on rental trucks, lorries etc. and he depute his personnel to the place of loading of vehicles with documents received from the party booking the vehicle, that after reaching, his men gave the papers of D.O. to the truck driver, that on the basis of these D.Os the goods were loaded in the lorry. After the lorry is loaded, they gave the documents such as bills/ challans etc. and lorry receipt for their t .....

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f investigation, the premises of M/s. New Swaminarayn Transport, Kalyan, was searched on 10.12.2003 and incriminating documental records were withdrawn. Statement of Shri Bharat Singh Hari Singh Vadher, proprietor of M/s New Swaminarayn Transport, Kalyan was recorded under Section 14 of the Central Excise Act, 1944 on 20.12.2003, wherein he inter alia deposed that the goods namely scrap loaded from M/s JISCO, Vashind in the vehicles arranged b him, for M/s. Diamond Transport, Dongri goes to the .....

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9,002/- to appellant No. 1 and notice was also issued to appellant No. 1 for recovery of interest under Rule 12 of CENVAT Credit Rules, 2001/2002 read with Section 11AB of the Central Excise Act. Penalty was also sought to be imposed on the Noticee No. 2 & 3 under Rule 13(1) of CENVAT Credit Rules, 2001 or Rule 13 (1) of CENVAT Credit Rules, 2002. Penalty was also sought to be imposed on Noticee No. 4, 5, 6 & 7 under Rule 26 of Central Excise Rules, 2002. The demand was confirmed by the .....

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3.1 Learned Counsel for the appellant Mohammadbhai Abdul Ali master, appellant No. 5 argued that they worked as agent for brokering HR Treaming on commission basis. He argued that the goods are directly supplied by Shri Ram Awatar Agarwal and Shri Manish Agarwal of M/s Manish Steel Corporation to the customers and customers paid directly to Manish Steel Corporation. They used to get the commission and freight charges in cash from the customers and sometimes from Shri Agarwal. It was argued by l .....

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teel. He argued that on successful bidding the broker/ Shri Agarwal used to inform them about the availability of goods and the rate on which the goods are to be sold. They used to sale the goods in and around Viramgam. The transportation was arranged by M/s Diamond Roadways owned by Shri Shantilal Shah. On the basis of above, it was argued that they were not involved in the act of dealing with the goods except organizing sale of goods purchased in their name by the broker/ Shri Agarwal. They we .....

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ll the consignment figuring in the Annexure to the show-cause notice. There is no evidence that payment for the material was routed through the appellant. There is no evidence that the appellant had collected any Central Excise invoices from Shri Shantilal Shah of M/s Diamond Roadways. Learned Counsel argued that the appellant is a broker and deals with a number of buyers and sellers. He argued that in absence of specific evidence of diversion of goods meant for Shyam Metal Pvt. Ltd. by the appe .....

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diversion is totally baseless and misconceived. He further argued that the goods received by appellant No. 5 Mohammadbhai Abdulali Master, Shri Mohshin H Memon and Shri Harikrishna Bhai Soneji were consignment purchased on behalf of Shyam Metal Pvt. Ltd. Basically, he denied that broker in all these transaction could participate in these transactions in any way. 3.4 Nobody appeared for other appellants. 4. Learned AR reiterated the findings in the impugned order. He pointed out that in similar c .....

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