9911796707
TMI Blog2025 (2) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... were bogus; accordingly, the claim of manufacture/ clearance/ export was false; Show Cause Notice dated 02.03.2010 was issued and was not decided till 2021; on a Writ No.9340/2021, filed by the appellants, the Hon'ble Punjab & Haryana High Court ordered that the Show Cause Notice be quashed; on an SLP No.20072/2021 filed by the Revenue, Hon'ble Apex Court, vide Order dated 10.08.2023, directed the Department to dispose of the case within eight weeks. Accordingly, the impugned OIO dated 06.10.2023 was adjudicated confirming demand of CENVAT credit, alleged to have been availed fraudulently Rs.11,26,46,495/- along with interest and equal penalty; recovery of wrongfully claimed rebate of Rs.7,11,35,518/-; rejecting rebate of Rs.2,30,21,741/- while imposing penalty of Rs.10 Lakhs on Shri S.K. Gupta, Managing Director of the appellants. Hence, these appeals. 2. Learned Counsel for the appellants submits that the investigation was undertaken by Meerut Commissionerate against the farmers and traders who have supplied mentha oil to the manufacturers in Jammu & Kashmir, Himachal Pradesh, North East etc. He submits that it appeared to the Department that most of the traders or farmers were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of raw material consignments were duly entered, assessed by officers of DIC and verified by the Range officers and no adverse findings were given and that it cannot be alleged that the 27 units did not purchase crude mentha oil and did not manufacture menthol products during the period 2005-06 to 2008-09. Learned Counsel further submits that the allegations of issue of fake invoices and fraudulent availment of credit cannot be alleged on the basis of assumptions and presumptions. It was held by the Hon'ble Supreme Court in the case of Durga Trading Co. -2003 (157) ELT A315 (SC) that the charge of clandestine removal has to be based on concrete and tangible evidence and not on inferences involving unwarranted assumptions. 4. Learned Counsel for the appellants further submits that the impugned order violates principles of natural justice inasmuch as request for cross-examination of the persons, whose statements have been relied upon has not be acceded to. He submits that entire demand is barred by limitation as Show Cause Notices dated 02.03.2010 and 06.05.2010, covering the period April 2005 to February 2010, were issued beyond the permissible time period. The assessment orders h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even the electricity was disconnected even for hour during the relevant period. 10. Further, we find that the evidence produced by the appellant in the form of copies of toll posts at Lakhanpur have not been considered by the appellant. It appears that the show cause notice and the impugned order is solely issued on the basis of the presumption and assumption and no investigation whatsoever have been undertaken at the end of the appellant. 11. Further, we find that no statements of the transporters have been recorded. It is pertinent to note that the refunds have been sanctioned by the adjudicating authority but the department has not challenged the same till date and as per the decisions relied upon by the appellant cited (supra) it has been held by various Courts that in the absence of challenge of the refund order, the demands cannot be made from the appellant. 12. We also find that the impugned order passed without affording an opportunity of cross examining the witnesses in spite of the request made by the appellant for cross examination of the witnesses and in the absence of cross examination, their statements cannot be relied upon as held by the Hon'ble Punjab and Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inty that during the period 2005-2006 to 2008-2009, these 27 units have not purchased crude Mentha oil and therefore have not manufactured any Menthol products in their units at all. There is hardly any time left for further investigation to strengthen the case as process is very time consuming and most of these of units have closed their factories due to withdrawal of Central Excise Duty on all Mentha products w.e.f 27.02.2010. Thus, the investigation may not be in tune with the investigations conducted by the Central Excise Commissionerate Merrut-II." 11. We further take of the fact that the similar issue on identical facts came up before this Tribunal in the case of Nanda Mint and Pine Chemicals Ltd. (Supra), wherein this Tribunal observed as under: " 6. We find that in this case the sole allegation against the appellant is based on the investigation made by Commissioner of Central Excise, Merrut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were nonexistence. Therefore, commission agents never supplied inputs to the appellant and the appellant did not manufacture the goods. Consequently, they have not sold the goods and it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C Checks/verification of plant/machineries and reported nothing adverse against these units. 6. Therefore, it may not be strongly alleged with certainty that during the period 2005-2006 to 2008-2009, these 27 units have not purchased crude Mentha oil and therefore have not manufactured any Menthol products in their units at all. There is hardly any time left for further investigation to strengthen the case as process is very time consuming and most of these of units have closed their factories due to withdrawal of Central Excise Duty on all Mentha products w.e.f 27.02.2010. Thus, the investigation may not be in tune with the investigations conducted by the Central Excise Commissionerate Merrut-II." 9. The said report also support the case of the appellant wherein it has been clearly mentioned that during the periodical checks by the departmental officers, the appellant found manufacturing the goods. Moreover, no discrepancy was found and on toll barriers it was found that the vehicles carried inputs/finished goods found entered. Moreover, the District Centre also certified the said fact. 10.We further take note of the fact that the various other departments namely Pollution Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to find out wherefrom the inputs were received by the appellant for the goods they manufactured and on which they paid duty and which were exported, if they had been received the inputs from M/s Ruchi Infotech System, Jammu or the other suppliers of inputs. Further, the additional evidence submitted by the appellant indicated that in respect of units in Jammu, Central Excise Officers visited the factory premises and seen that the manufacturing process going on was evidence by them and such evidences being on record and submitted by the appellant it was the duty of the Original Authority to accept them and not to discard by saying that the Officers have not seen the goods being manufactured by their own eyes. Further, the receipt of inputs was verified by the Officers of Central Excise Department and sample of the same were also drawn and forwarded for Chemical Examination. Such evidence was also not accepted by the Original Authority, Therefore, it appears that the Original Authority was pre-determined to adjudicate the matter in the manner in which he has decided the issue and he was not just and fair and did not discharge his duty as an independent adjudicator. We, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises and seen that the manufacturing process going on was evidence by them and such evidences being on record and submitted by the appellant it was the duty of the Original Authority to accept them and not to discard by saying that the Officers have not seen the goods being manufactured by their own eyes. Further, the receipt of inputs was verified by the Officers of Central Excise Department and sample of the same were also drawn and forwarded for Chemical Examination. Such evidence was also not accepted by the Original Authority; Therefore, it appears that the Original Authority was pre-determined to adjudicate the matter in the manner in which he has decided the issue and he was not just and fair and did not discharge his duty as an independent adjudicator. 8. In view of the above, we are of the considered opinion that the allegation leveled against the appellants do not sustain. The averment by the learned Authorized Representative that some of the supplies made may be fake is of no help at this stage. It was open to the Department to collect all the evidences and make precise allegations while issuing the Show Cause Notice. The bus having been missed, Revenue cannot open a n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
