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TMI Blog2018 (11) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... RM and credit sought to be denied -do- 59964 3 Random Invoices found not included in list of invoices for duty payment on alleged clearance of FG -do- 127492 4 Certain inputs and FG cleared without reversal of credit under challans -do- 482369 5 Sofa used in factory office, but duty not paid (Captive Consumption) and duty demand thereon -do- 15106 6 Gods cleared on Non Returnable Gate Passes without reversal of credit -do- 100839 Total 855797 Issue No. 2 (Improper availment of Cenvat Credit) Sr. No Nature of issue Evidence adduced Amount involved Rs. 1 Invoices were not mentioned in gate register Certain invoices not mentioned in register named "incoming Material s" seized from the security cabin situated at the entry gate of company and statements of Shri Rajesh Kumar Upadhyay, security guard 24.11.14 1,88,556/- 2 The nm size of MDF Board(inputs) in gate register is different from invoice Supplier's Invoices and receipt voucher prepared by appellant 24,65,827/- 3 Vehicle number was fake& goods had been not received from K.P. Foam In voice No. 124 and 125 dt.14.6.14 mentioned vehicle number GJ3AF 8382- which is non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roforma invoices were made hence such invoices cannot be relied upon and on that basis demand of duty cannot be raised. Except the Performa invoices, there is no evidence of any clandestine removal. D) As regard, Serial No. 4, the impugned order has confirmed reversal of Cenvat Credit availed by the appellant on the ground that they had cleared inputs namely such P.U. foam of various thickness, Hilton sheet, packing box, Staple fiber, plastic packing etc, to manufacturers namely M/s interwood, Mumbai and some other parties on the strength of Central Excise invoices gate passes, but without reversal of Cenvat Credit. In respect of this, he submits that it is essential to know that it is mere clerical error on the part of the appellant. The person handling these transactions was not well versed with technicalities and since this was not regular transaction, especially since it was not finished goods produced, no compliance was made in this regard by concerned person. For such error, the dealing person was relieved from his duty and removed from employment. E) As regard Serial No. 5, he submits that since sofas were used in the appellant's administrative Office therefore, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting to Rs. 24,65,827/- is on the ground that in many cases MDF Board mentioned in the invoices did not match with the thickness mentioned in GRV (Goods Received Voucher) maintained by store-in-charge of the appellant. He submits the appellant admittedly used MDF board in the manufacture of sofas. For this purpose, they are required specific thickness of material generally, i.e. 12 MM/18 MM etc. As such this is how the BOM (Bill of Material) and master entry form in the software is also prepared. He submits that at the same time, the exact MM never received and as per commercial grade, the variation in the MM thickness of board is a common practise in the industry. For e.g., board 10 MM is generally accepted to be of grade of 12 MM only. In that sense, the records are also maintained as such in specified MMs as per BOM as required for the production purpose. He further submits that it is general practise of trade that for e.g. where thickness of 12 MM of MDF board is required two boards of 6MM are joined together in order to obtain the same thickness. If any discrepancy in the thickness is found, it is merely on account of such stapling of MDF boards together. Practically the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 382. It shows that it is clearly clerical error in mentioning the vehicle Number. He submits that there are several recorded invoice of the correct numbered vehicles with the appellant for receipt of foam from same vendor. Therefore, the mistake is of clerical nature which does not construe the non receipt of the inputs. 4. As regard the denial of credit of Rs. 6,14,446/- mentioned at serial No. 4 above, the credit was denied on the ground that the invoice of coated fabric shown to have received from M/s Responsive Industries ltd, the invoice mentioned name of consignee as M/s Karishma Sale Corporation. He submits that the appellant's name is appearing as delivery address i.e. appellant factory, therefore, which shows the delivery of goods was made at the appellant's factory, hence credit cannot denied. He further submits that even though the statement recorded under section 14 were retracted but the appellant also requested for cross-examination whereas persons whose statement were recorded, the adjudicating authority has denied requested for cross-examination. In this position, the statement cannot at all be relied upon for confirming the demand. He further submits that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly put twice due to clerical error on part of the employee. Consequentially one set of invoice was escaped from payment of duty amount to Rs. 70,027/-. However, the appellant is not contenting this demand and they have paid the duty along with interest immediately upon being pointed out, therefore the demand of duty of Rs. 70,027/- on this count is upheld. 2. Regarding Serial No. 2, I find that the debit notes suggesting the price variation/ short receipt of raw material and credit sought to be denied. As per the submission of Ld. Counsel, the debit note is towards compensation nature of non-lifting of goods as per the ascertained terms of contract. I agree that the compensation is not part of value of goods whereas the same is on the form of penalty for non-lifting of the goods, hence the same cannot be liable to excise duty. Ld. Counsel also submits that at the most, this could constitute as declared service, therefore on this amount excise duty is not attracted. Accordingly, the demand of Rs. 59,964/- on this count is set aside. 3. As regard serial No. 3, the duty was demanded on some invoices which were not included in the list of invoice. The demand for payment of duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has not disputed the demand, however they only pleaded that the non reversal of credit is not due to intention but only due to clerical error. Accordingly, I uphold the demand of Rs. 1,00,839/- confirmed against the appellant on this count. As regard issue number 1 from serial no. 1 to 6, the Ld. Counsel strongly submits that wherever there is non payment of duty/ non reversal of credit, as explained in their submission it is not due to malafide intention but only due to clerical error, therefore penalty should not be imposed. I find that as per the explanation given by the appellant and the facts of the case for each and every goods there are one or other document available on record, therefore it cannot be said that the appellant had malafide intention, accordingly, they made out a good case for waiver of penalty. Accordingly, I set aside the penalty corresponding to the duty upheld in the above para. Issue No. 2 1. Under issue no 2. against serial No.1, the demand of Rs. 1,88,656/- was confirmed towards cenvat credit of inputs said to have not been received on the ground of statement given by Sh. Rajesh Kumar Upadhyay, Security Guard and non mention of invoice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is count. 3. With regard to serial No.3, the cenvat credit of Rs. 12,229/- was denied on one of the input namely, PU Foam only on the ground that in the invoice, the vehicle No. was mentioned as GJ3AF 8382 which is not existing as per RTO report, whereas the correct No. is GJ3AX 8382. In this regard, I find that except this minor different in the vehicle Number, the department could not adduce any evidence, moreover it is fact that vehicle number GJ3AX 8382 is correct as per RTO record. Therefore, it is obvious and while mentioning the vehicle number, the clerical error has occurred. Ld. Counsel in this regard also submits that the appellant had procured regularly goods from the same supplier M/s KP Foam. Accordingly, in my considered view, only for minor mistake in mentioning vehicle number it cannot be concluded that the inputs mentioned in the invoice was not received by the appellant. Accordingly, the demand of Rs. 12,229/- is set aside. 4. As regard, serial no. 4, the cenvat credit of Rs. 6,14,446/- was denied by the lower authority on PVC/coated fabric on the basis of invoice raised by M/s Responsive Industries Ltd. The only reason for denial of credit is that in the invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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