TMI Blog2019 (4) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... ready held that for violation of conditions of Notification No.32/2005-Cus dt.8.4.2005, there is no demand notice has been issued for recovery of customs duty, therefore, import cannot be held irregular. Thus, the credit cannot be denied on the allegation of violation of conditions Notification No.32/2005-Cus dt.8.4.2005. Therefore, the allegation is not sustainable. Further, it has been alleged that there is no entry of passing of vehicle on the basis of report of NHAI - HELD THAT:- Revenue has failed to show the evidence except the report of NHAI in the form of the statements/records of vehicle owner to ascertain the fact to came to the conclusion that these goods vehicles in question have not transported the goods from Ludhiana to Jalandhar or Jalandhar to Ludhiana. Except from the report of NHAI, no documents has been placed by the Revenue whether it is mere paper transaction, therefore the credit cannot be denied when the goods have been cleared on payment of duty. CENVAT credit - credit sought to be denied to M/s. Kohinoor Enterprises, M/s. Asian Tire Factory Limited and M/s. Vinko Auto Industries on the ground that no goods have been travelled from M/s. Windsor and onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich additional custom duty had been paid. Subsequently on 6/8/08, 16/8/08, 21/8/08 and 30th September, 2008, five more consignments were imported under Notification No. 32/2005-CUS in respect of which additional custom duty had been paid. These imports had been made by buying the goods on high sea sale basis through M/s Kohinoor International. 2.2 On 14/8/08, the Jurisdictional Central Excise Superintendent, visited the unit of M/s Windsor at C-203/1, Phase VII, Focal Point, Ludhiana and found that there was no machinery installed there for manufacture of any goods. The unit was not even having power connection. M/s Windsor were asked in writing for clarification on this point and under letter dated 15/12/08, they informed the Jurisdictional Central Excise officers that they had arranged to get the goods manufactured on job work basis. Subsequent, the inquiry revealed that M/s Windsor after importing the synthetic rubber under target plus scheme under Notification No. 32/2005-CUS dated 8/4/05, had availed Cenvat credit of ₹ 59,72,605/- and thereafter had issued 35 job work challans showing the sending of the imported synthetic rubber alongwith carbon black and silica procu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar to Ludhiana had passed through the Toll Plaza. 2.3 The records of M/s Windsor showed that synthetic rubber compound involving duty of ₹ 16,13,060/- had been sold to M/s Kohinoor Rubber Mills [Proprietor Shri Nipun Jain], the synthetic rubber compound involving duty of ₹ 44,02,815/- had been sold to registered dealer M/s Oswal Enterprises [Proprietor Shri S.P. Jain] and thereafter, M/s Oswal Enterprises had issued invoices showing the sale of synthetic rubber compound involving duty of ₹ 37,73,889/- to M/s Asian Tire Factory Ltd. and synthetic rubber compound involving duty of ₹ 6,28,926/- to M/s Vinko Auto Industries Ltd. Both these units being manufacturer had availed Cenvat credit of ₹ 37,73,889/- and ₹ 6,28,926/- respectively on the basis of invoices issued by M/s Oswal Enterprises. Similarly, M/s Kohinoor Rubber Mills had taken Cenvat credit of ₹ 16,13,060/- on the basis of invoices issued regarding sale of synthetic rubber compound issued by M/s Windsor. However, since, the manufacturing unit of M/s Windsor was in existence only for a very short period from 6/8/08 to 1/12/08 and the physical verification at this unit had showed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II) of Central Excise Rules, 2002 for abetment in the offence M/s Windsor ; (g) imposition of penalty on Shri S.P. Jain, Proprietor M/s Oswal Enterprises under Rule 26 (2) of Central Excise Rules, 2002 ; (h) recovery of allegedly wrongly availed Cenvat credit of ₹ 37,73,889/- from M/s Asian Tire Factory Ltd. under Rule 14 of Cenvat Credit Rules, 2004 alongwith interest and also for imposition of penalty on them under Rule 15 of Cenvat Credit Rules, 2004 readwith Section 11AC of the Central Excise Act ; (i) recovery of allegedly wrongly taken Cenvat credit of ₹ 6,28,926/- from M/s Vinko Auto Industries Ltd., Jallandhar alongwith interest and also for imposition of penalty on them under Rule 15 of Cenvat Credit Rules, 2004 readwith Section 11AC of the Act ; and (j) imposition of penalty under Rule 26 (2) of Central Excise Rules, 2004 on Shri Nipun Jain, Partner M/s Kohinoor Rubber Mills. 2.6 The above show cause notice was adjudicated by the Commissioner, Central Excise, Ludhiana vide order-in-original dated 3rd April, 2012 by which (a) the Commissioner held that the transactions of M/s Windsor with M/s Kohinoor India Pvt. Ltd. regarding job work and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional customs duty paid and the said goods were sent by M/s. Windsor to M/s. Kohinoor India for job work and received back by M/s. Windsor. Thereafter did certain processes, sold to Kohinoor Rubber Mills, Jalandhar and M/s. Oswal Enterprises who further sold to M/s.Vinko Auto Industries and M/s. Asian Tire Factory Limited, Jalandhar. The first allegation is that in terms of Notification No.32/2005-Cus, the importer shall not transfer or sale the imported goods. Admittedly, in this case, the goods have been transferred by the appellant to the job worker for further processing but no demand has been raised under Customs Act, 1962 for contravention of conditions of Notification No.32/2005-Cus. Therefore, on that count, no demand is sustainable against the appellant. 5. We further take note of the fact that the allegation of the department is that systematic rubber has been sent by Windsor was not received back and no machinery installed in the factory, therefore no manufacturing process can take place in the factory of M/s. Windsor. Therefore, the credit availed by M/s. Windsor sought to be denied for violation of condition of Notification No.32/2005Cus dt.8.4.2005. It was also all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries are of found at toll barrier and whether the goods fond travelled from Ludhiana to Jalandhar or Jalandhar to Ludhiana or not. In fact, investigation with regard to the transporter is essential to ascertain whether they have transported the goods from Windsor to the buyer s premises or not. 9. We further take note of the fact that no efforts were made by the Revenue to ascertain the fact whether the buyers of the goods from M/s. Windsor have actually been received the goods or it is merely paper transactions to cleared the goods and when cleared goods have not been received by the buyers premises and how they procured the goods which have been used in the manufacture of dutiable goods cleared on payment of duty. In that circumstance, we hold that the credit cannot be denied to M/s. Kohinoor Enterprises and M/s. Asian Tire Factory Limited M/s. Vinko Auto Industries. As he have held that the credit cannot be denied and therefore no proceedings initiated against M/s. Windsor Exports under Customs Act, 1962 as no cogent evidence has been produced by the appellant for non movement of the goods along with invoices, the benefit of doubt goes in favour of the appellants. Consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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