2018 (1) TMI 260
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.... and rounds, carbon steel billets and ferro alloys in their names. But the said goods were actually being diverted elsewhere. The dealer M/s. Shiv Shakti Steel, was one of the recipients of such invoices. Scrutiny of the records of dealer s firm revealed that the appellant No.1 have availed the Cenvat credit amounting to Rs. 1,39,053/- on the basis of invoices issued by the dealer. The statement dated 19.11.2008 of Shri Ashok Bansal, partner in the dealer s firm was also recorded and other investigation was caused. Further, on scrutiny of the documents, pertaining to the purchase of raw material of the appellant firm revealed that they had also shown the purchase of raw material directly from M/s.HSAL involving Cenvat credit of Rs. 10,84,303/-. The department also recorded the statement dated 29.6.2006 of Shri Dinesh Kumar Goyal, Director of the appellant No.1 in which he stated that they had purchased goods from M/s.Shiv Shakti Steels in 2004-05 and 2005-06. The statement of Shri Ramesh Rawat, Executive Director of M/s.HSAL was also recorded in which he admitted categorically that they had issued invoices without sending any goods. In his subsequent statement dated 23.12.2009, Sh....
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....in which VAT D-3 forms showing Alloys bars and rods to be consigned to M/s.NSP Forging (P) Ltd. He further submitted that no statement of the driver of any truck have been recorded and the statements of only transporters were recorded. He further contended that in the statement of Shri Ramesh Rawat, Executive Director M/s.HSAL, the name of the appellant was not mentioned. He invited attention to the statement of Shri Dinesh Kumar Goyal, Director of the appellant, who had stated that the payment was made to M/s.Haryana Steel. 3. On the issue of penalty on the Director of the appellant, he submitted that the penalty equivalent to the amount of Cenvat credit had been imposed under Rule 26 (1) of the Central Excise Rules, 2002. He argued that the penalty was not sustainable as the Director did not issue any invoice and the company was only recipient of the goods. He relied on the case law of M/s.Taj Forgings (P) Limited vs. CCE, Faridabad vide Final Order No.116/2016-CHD dt.21.01.2016 in appeal No.E/54489/14-SM. He also relied on the case law of CCE, Mumbai-I vs.Lal Mining Engg. Works-2007 (82) RLT 286 (SC). 4. Ld.AR appearing for the Revenue contended that the second show cause noti....
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....tation is not invokable in subsequent proceedings when the earlier proceedings on same subject matter are decided/pending. I find that there two types of invoices in the show cause notice dt.23.2.2010:- (i) 24 invoices on which purchase of raw material was shown directly from M/s.HSAL (ii) 2 invoices on which purchase of raw material was allegedly made via the first stage dealer M/s.Shiv Shakti Steels. 10. With regard to the 24 invoices, I find that these invoices were not known to the Department when the first show cause notice for the period 28.11.2003 to 27.11.2004 was issued on 2.12.2008 in which the duty of Rs. 11,11,503/- was demanded. In the said show cause notice, the demand was based on the statement dt. 27.8.2008 given by Shri Dinesh Kumar Goyal, Director wherein Shri Goyal stated as below: "Further on being asked specifically about the business transaction with M/s. HSAL, Sonepat, I state that we have business transaction with them since November, 2003, that we have availed a sum of Rs. 11,11,503/- on the invoices issued by them. On being asked, whether we have received any material from M/s.HSAL against invoices issued by them in the name of our company, I state ....
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....dent from the fact that the statement of Ashok Bansal, partner in M/s. Shiv Shakti Steels was recorded on 19.11.2008 wherein he was questioned about these invoices. Hence, these two invoices could not be included in second show cause notice. 13. The case laws relied upon by the appellant are not applicable to the facts of this case relating to 24 invoices of M/s.HSAL because in the case of Nizam Sugar Factory (supra) all the relevant facts were in the knowledge of the department and no new facts had emerged at the time of second show cause notice. In the instant case, it is evident that new facts relating to 24 invoices came to the notice of the Department only after second statement of Shri Dinesh Goyal. In the case of ECE Industries Ltd.(supra) subject matter of the two proceedings was similar and there was no suppression of facts unlike in the present case. The appellant have also referred to para 4 of stay order where the Bench had given prima facie finding on limitation. In this context, it is settled position in law that interim order is not binding in finally deciding an appeal. In this regard, Hon'ble Supreme Court in the case of Amresh Tiwari vs. Lalta Prasad Duby & anoth....
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....Bedi Transport Co. in his statement dated 19.5.2006 categorically stated that their company never transported any goods manufactured by M/s.HSAL to Faridabad. Shri Dinesh Gupta, Partner of M/d.Gupta Motors, YST-3, Loha Mandi, Naraina, New Delhi vide his fax letter dated 18.1.2010 informed that on 31.05.2006 his vehicle No.HR 38C 9065 and HR 38 G 3390 (for which GRs were issued in their GR books) did not belong to him and he had no knowledge about the same. Similar facts were narrated by Shri Anil Kumar Gupta of M/s. Gupta Motors, Naraina, New Delhi in his statement dated 28.01.2010. The appellant have not disputed these statements of Shri Ramesh Rawat, Shri Vijay Kumar, Shri Dinesh Kumar and Shri Anil Kumar. Their only argument is that the appellant s name does not figure in the statement of Shri Rawat and the statements of drivers were not recorded. I find that the statement of Shri Ramesh Rawat clearly brings out that goods were only sent to Jodhpur and no goods were transported to Faridabad where only invoices were sent. Besides, there is admission by Shri Dinesh Goyal, Director that material received in these 24 invoices was not manufactured by M/s. HSAL. I also find that the e....
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....s) and after considering the findings of first appellate authority, I am in full agreement with the finding of fact given by the Commissioner (Appeals) in para 10 of his order, which is reproduced below: "10. The appellants have relied on the Form 38 issued by State Government of Haryana in respect of the said 24 invoices covering the transactions between HSAL and the appellants. Here I note that blank Form 38 is issued by State Government of Haryana where particulars of the consignments are filled by the originating point. It is not the case that any Government agency supervises the movement of goods under the cover of Form 38. On perusal of the copies of Form 38 brought on record by the appellants, I do not find any endorsement by Stage Agency to the effect that the goods covered under the said Form 38 were delivered under their supervision. The particulars filled in Form 38 at best can be equated by issuing an invoice under Rule 11 of the Central Excise Rules, 2002, where the person issuing invoice himself fills the details of the goods covered under it. Rather I find that the act of HSAL amounts to breach of trust deposed upon them where they were supposed to act in a bonafid....
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....ase of Arvind Enterprises (supra), which has been referred above and distinguished. Besides, the facts given in the Taj Forging Ltd. order are very scanty, hence no reliance can be placed on this. The appellant have also relied on the decisions sof CCE, Chandigarh Vs. Shakti Rolls Cold Strips (P) Ltd.-2008 (229) ELT 661 (P&H). However, the facts of said case are different as there was a finding by the Tribunal that the inputs were obtained on transit sales made by the dealer and there was proof of their use in manufacture. On the contrary, in this case, it has been admitted by Director that the 24 invoices were not accompanied by the inputs manufactured by M/s.HSAL and were therefore bogus invoices. The appellant have also relied on CCE, Chandigarh Vs. Hitkari Industries Limited-2008 (226) ELT 583 (Tri.-Del.), which is a Single Member decision; besides the said case was booked on the basis of invoices issued by a dealer, who did not have records of consignment in his sales tax registers. However, on specific verification with Sales Tax authorities submitted details of consignments that crossed the Parwanoo border and the payments were made by cheque. No such verification was done i....