Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

CCE, Rohtak Versus M/s. Steel Services Shri R.S. Narang, Partner

2017 (9) TMI 1061 - CESTAT CHANDIGARH

CENVAT credit - Duty paying invoices - fake invoices - M/s.HSAL had only supplied invoices to various parties without supplying the goods - Held that: - the fictitious nature of transfer taken of inputs recorded by the Ld. Commissioner (Appeals), is completely contradictory to his conclusion at the end of order that the inputs were actually received by the appellant and the department did not prove that inputs were not received in the factory, categorically. - The provisions of Section 9D of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g the principles of nature justice - appeal allowed by way of remand. - Appeal No. E/807-808/2011 - Final Order No. 61789-61790/2017 - Dated:- 11-9-2017 - Mr. Devender Singh, Member ( Technical ) For the Appellant : Shri Satyapal, AR For the Respondent : Shri N. Bindal, Advocate ORDER Per : Devender Singh The brief facts of the case are that the respondent had availed Cenvat credit on the basis of invoices issued by M/s. Haryana Steel and Alloys Limited (HSAL) during the period 2002-03 to 2004-0 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the respondent took Cenvat credit of ₹ 19,40,840/- on the basis of 33 invoices issued by M/s.HSAL. The demand of ₹ 19,40,840/- was confirmed by the adjudicating authority along with interest and penalty of ₹ 19,40,840/- under section 11AC and penalty of ₹ 19,40,840/- under Rule 15 of Cenvat Credit Rules, 2004. A penalty of ₹ 10 lakh was also imposed on Shri R.S.Narang, partner of M/s.Steel Services. The respondent went in appeal. In the appeal proceedings, the deman .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed that they had not transported any goods from M/s.HSAL to the respondent. He referred to the statements of the transporters M/s. Bedi Golden Transport Co. and M/s.Delhi Calcutta Road Carriers who stated that they had not transported any goods to the respondent and that their vehicles had been used for transportation of SS flats from M/s.HSAL to Wazirpur and Jahangirpur Industrial area. 2.1 Ld.AR also referred to the 21 GRs which were submitted by the respondent and stated that out of 21 GRs, i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rther, Shri Vijay Kumar, Manager of M/s. Bedi Golden Transport Co. in statement dated 19/5/2006 said that they never issued any builty to M/s.HSAL for any place other than Jodhpur and Ahmedabad. Inquiries were conducted at the end of M/s.Komal Transport Co. having head office at 2887, Dharamsala Wali Gali, Old Sabzi Mandi, Delhi it was found to be residential premises. Shri Krishna Kumar Sharma residing in the said premises for last 25 years stated that he had any connection with M/s.Komal Trans .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rom M/s.Vigyan Udyog Corporation Delhi on 21.07.05,30.07.05 & 20.08.05 respectively. The same trucks have been shown to have transported goods from M/s.HSAL to the party against invoices nos.481 dt.21.07.05, 545 dt.30.07.05 & 609 dt.20.08.05 respectively. 2.3. He relied on the following cases: (i) CCE, Ludhiana vs. Indian Special Castings (P) Ltd.-2008 (227) ELT 322 (Tri.-Del.) which was confirmed by Hon ble Punjab and Haryana High Court reported in 2010 (255) ELT 209 (P&H) and SLP a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in Appeal No.E/3602/2011]. 3.1. He further submitted that in the adjudication process, section 9D was not complied with and an opportunity for cross examination of the witnesses was not granted to them. In this regard, he relied on the judgement of the Punjab & Haryana High Court in the case of Jindal Drugs-2016 (340) ELT 67 (P&H). In these circumstances, the statement of the transporter cannot be relied upon. 3.2. Further contention is that the department failed to give alternate sourc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a separate penalty cannot be imposed on the partner of the firm. In this regard, he relied on the judgment of Hon ble Punjab & Haryana High Court in the case of Vinod Kumar Gupta vs. CC-2013 (247) ELT 54 (P&H). He also submitted that the matter may be referred back to the adjudicating authority. 4. Heard the parties and examined the records. 5. I find that the order of the Ld. Commissioner (Appeals) suffers from a serious infirmity. In the paragraph 5 of the findings, the Ld. Commission .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

their statements. It is not necessary that for every statement, the adjudicating authority should permit cross examination, when their statement has not been the matter of subsequent retraction. It is also not a fact that the relied upon documents have not been provided to the appellant. They have not stated that as to which documents were not made available to them, for defending the case. So I don t intent to give any relevance to that. 6. I find that the above findings of fictitious nature o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t, 1944 have not been followed by the adjudicating authority, which were required to be followed as per law at that time. It is well settled principle that the adjudicating authority cannot straightaway rely on the statement recoded during investigation unless the conditions set out in Section 9D are fulfilled. In this connection, Hon ble Punjab & Haryana High Court in the case of M/s. Ambika International & Another vs. U.O.I. & Another-2016-TIOL-1238-HC-P&H-CX has held as under: .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opini .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es in which a statement, made and signed by a person before the Central Excise Officer of a gazetted rank, during the course of inquiry or proceeding under the Act, shall be relevant,for the purpose of proving the truth of the facts contained therein. 16. Section 9D of the Act came in from detailed consideration and examination, by the Delhi High Court, in J.K. Cigarettes Ltd. vs. CCE, 2009 (242) ELT 189 (Del) = 2009-TIOL-478-HC-DEL-CX. Para 12 of the said decision clearly holds that by virtue o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

signed before a gazetted Central Excise Officer, shall be relevant for the purpose of proving the truth of the facts contained therein. If these circumstances are absent, the statement, which has been made during inquiry/investigation, before a gazetted Central Excise Officer, cannot be treated as relevant for the purpose of proving the facts contained therein. In other words, in the absence of the circumstances specified in Section 9D(1), the truth of the facts contained in any statement, reco .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version