9911796707
TMI Blog2025 (5) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... the case are as under: - (i) M/s. Hindusthan Engineering and Industries Limited (the appellant-company / appellant no. 1 herein) at its factory situated at National Highway No.2, Bamunari, Hooghly 712205, manufactures railway parts and articles of iron and steel falling under Chapters 86 and 73 respectively of the First Schedule to the Central Excise Tariff Act, 1985. The said products are mainly for supply to the Indian Railways. M. S. Waste and Scrap is a major input used by the appellant in the manufacture of its said final products. (ii) The appellant's said factory is duly registered under the Central Excise Act, 1944 (hereinafter "Act") read with the rules framed thereunder. All required statutory and procedural formalities are duly complied with by the appellant. The appellant-company duly pays Central Excise duty lawfully leviable on the goods manufactured at and cleared from its factory. All clearances are made under cover of statutory Central Excise invoices. All required statutory records and registers are systematically maintained by the appellant and monthly returns in Form ER-1 are regularly filed by the appellant. (iii) During the relevant period, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d products cleared from its factory upon the due payment of duty, of which there is no dispute. (vii) At the Tiljala Plant of the appellant-company / appellant no. 1, in course of manufacture of wagons, M.S. Scrap is generated in the form of fabricated structures, stripe cuttings, plate cuttings etc. From time to time the appellant disposes of such scrap as also scrap jigs and fixtures which cannot be used at its Tiljala Plant. Such scrap is of mixed variety and cannot be used in the appellant's Bamunari Plant as such. At the Bamunari Plant, the appellant uses the melting scrap of thickness not exceeding 5 mm and length not exceeding 12'. During such periods, the said dealer also purchased the scrap arising at the appellant's Tiljala Plant. 3. Subsequently, an enquiry was undertaken against the said dealer by the Revenue. During the course of such enquiry, statements of some vehicle owners were recorded. On the basis of the aforesaid enquiry and investigation, a Show Cause Notice dated 02.12.2013, was issued to the appellant's herein proposing disallowance of CENVAT Credit amounting to Rs. 1,21,60,760/- (including cess) against the appellant no.1 for the relevant period under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company's outward clearances had been made under cover of Central Excise invoices and Central Excise returns had been filed regularly. (ii) Disputed inputs had been purchased on delivered basis from M/s Vikash Industrial Corporation which was a registered dealer under the cover of dealer's invoices and the same had been paid for by Account Payee cheques. Such goods had been consumed at the aforesaid Bamunari plant and, in the usual course of business, the company had taken CENVAT Credit; M/s Vikash Industrial Corporation regularly filed Central Excise returns. (iii) The manufacturer whose particulars had been mentioned in the dealer's invoices in dispute included Tata Steel Limited, Steel Authority of India Limited, Jindal Steel Products Limited, Jindal Steel & Power Limited, Garden Reach Ship Builders & Engineers Limited, Ambuja Cement Limited, Balmer Lawrie & Co. Ltd., Skipper Limited and others. At the company's Tiljala plant, M. S. scrap used to be generated in the form of fabricated structures, strip cuttings, plate cuttings and from time to time, such scrap as also scrapped jigs and fixtures used to be disposed of. During the relevant period, M/s Vikash Industrial Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed more than 3-4 years before and clarify to the revenue (reference is drawn by the appellants to the answer to question no.5 of Shri Amit Kumar Jaiswal's statement dated 23.08.2013 and the answer to question no.3 of Shri Gaurava Singh's statement dated 04.09.2013). This apart, the alleged statements were almost identically worded, uncorroborated and the adjudicating authority ought to have held such statements as unreliable and/or inadmissible, notwithstanding that the said statements had been recorded in terms of Section 14 of the Act. It was evident that no question had been put to the drivers of the vehicles concerned, from who enquiry should have been made. (viii) According to question No. 26 put to Shri S. Mandal, Director of M/s. Vinny Technocrats Pvt. Ltd. on February 24, 2011 being Annexure-B/8 to the show cause notice, records of the said manufacturer showed clearances of M. S. scrap and further, the deponent's answer to question No. 26 also showed that the said manufacturer had received M. S. goods in its factory. It was surprising that CENVAT credit had been sought to be disallowed at the recipient's end without making the purported defaulting manufacturer i.e. M/s. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -IV (Excise Appeal No. 75063 of 2015 & Ors.) * Commissioner v. Motabhai Iron and Steel Industries, reported in 2015 (316) ELT 374 (Guj.) * Commissioner of Central Excise, Indore v. Mittal Appliances Ltd., reported in 2017 (345) ELT 283 (T) --- appeal therefrom since dismissed in Customs, Central Excise & Service Tax v. Mittal Appliances Ltd., reported in 2018 (12) GSTL 297 (M.P.) * Anurag Alloys & Die Cast (Pvt.) Ltd. v. Commr. of C.Ex., Faridabad, reported in 2023 (383) ELT 405 (P&H) 5.1. The Ld. Counsel for the appellants also submit that the impugned demands are wholly barred by limitation on account of, amongst others, the following:- (i) CENVAT Credit had been availed pertaining to November, 2008 to February, 2012 and none of the conditions precedent for invoking the longer period of limitation had existed. If indeed any ingredient to invoke the extended period of limitation had been satisfied, the adjudicating authority was required to pinpoint the same and it was not open to him to hold generally "... all the ingredients for invocation of longer period i.e. fraud, suppression of facts, willful mis-statement are available..."; (ii) The decision of the Hon'ble Gujar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, the appellants have prayed for setting aside the impugned order and allowing their appeals. 6. On the other hand, the Ld. Authorized Representatives appearing for the Revenue supported the impugned order. 7. Heard the parties and considered their submissions. 8. On going through the records placed before us, we find that in this case, the appellant-company was procuring inputs through the dealer, namely, M/s. Vikash Industrial Corporation, who is a registered dealer. The said dealer has shown, in his invoices, the manufacturers as M/s. Tata Steel Limited, M/s. Steel Authority of India Limited, M/s. Jindal Steel Products Limited, M/s. Jindal Steel & Power Limited, M/s. Garden Reach Ship Builders & Engineers Limited, M/s. Ambuja Cements Limited, M/s. Balmer Lawrie & Company Limited, M/s. Skipper Limited, etc. 8.1. Apart from this, the said dealer, in three invoices, has shown the manufacturer as M/s. Vinny Technocrats Limited. 9. At the very outset, we cannot help but notice that there is no statement from the registered supplier cum dealer in the instant case i.e. M/s Vikash Industrial Corporation (proprietor: Sri Dipak Kumar Nathani), denying supply of goods to the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though not conclusive. In these circumstances, we find that the CENVAT Credit availed by the appellant no. 1 cannot be denied. 10.2. The same view has been taken by this Tribunal in the case of R.S. Ispat Private Limited & anr. v. Commissioner of Central Excise, Kolkata-IV [Final Order No. 76809 to 76810 of 2024 dated 04.09.20204 in Excise Appeal No. 75063 and 75064 of 2015 - CESTAT, Kolkata] wherein this Tribunal has observed as under: - "16. The first submission of the appellant is that while the demand is in account of 245 transactions, the investigation was taken up for only 67 transactions. On a specific query to the AR as to whether any verification was taken for all the transactions or not, he submits that as per the available records, there is nothing to indicate that in respect of 178 invoices, any investigation was taken up to carry forward the allegation of non-receipt of these goods. We are of the view that in such cases, the Revenue is required to be very thorough since the demand is based on each and every invoice. The allegation can sustain only on such invoices on which the investigation has taken place and non-receipt if conclusively proved. The investigation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the vehicles which are recorded as 'banned vehicles', the possibility of such vehicles still being used for delivery cannot be ruled out. This leaves out a few more cases where the vehicle numbers pertain to non-transport goods. There may be a possibility that such numbers are used by vehicle owners in order to avoid payment of Road and other taxes. But we cannot come to any definite conclusions. ......... 22. We also find considerable force in the arguments of the appellant about the time bar aspect in this case. The appellant is an assessee with the Dept. They have been taking the Cenvat Credit and also filing their Returns. It is not the case of the Dept. that any private records have been recovered towards the cash transactions. The Dept. has not brought in any evidence to the effect that any suppression has taken place from the appellant's side. Hence, we hold that the confirmed demand for the extended period is legally sustainable on account of time bar. Hence, we allow the appeals even on account of limitation." 10.3. The Hon'ble High Court at Gujarat, in the case of Commissioner v. Motabhai Iron and Steel Industries [2015 (316) E.L.T. 374 (Guj.)] has held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which later became M/s. Saral Logistics Pvt. Ltd. had four offices. But the investigation did not go through the records of other offices other than located at Sagare Kuti Chauraha. 6. The appeal by Revenue relies on the submission of Shri Atlant Dwivedi proprietor of M/s. Sujay Transport Company. We find that the submission is based on records mentioned at one of his offices situated at Sagar Kuti Chauraha. The original authority has recorded that vehicles which transported the duty paid inputs were deployed by Shri Ravikant Dwivedi Director of M/s. Saral Logistics System Pvt. Ltd. from his office situated in Rama Chauraha. The question regarding the transportation of raw material has been discussed at length by the original authority (Paras 23, 24 of the impugned order). 7. Further, the original authority also recorded that the freight has been regularly paid on cash payment voucher which are acknowledged by the transporter. The list of such vouchers was also recorded in the impugned order. The original authority also examined certain discrepancies in the vehicle numbers. 8. We find no infirmity in the reasoning and conclusion of the impugned order. The investigation by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at were the vehicles in which the said goods were transported and to what destination. e. No discrepancy in the stock of raw material or finished goods was noticed in the factory of M/s. MAL, Nothing has been brought on record to show as to how M/s. MAL produced their final products in the event of not having received the inputs in their factory. f. It is noticed that M/s. MAL have paid the amount for the purchase of inputs to M/s. Indo Micro Nutrients and M/s. Inter Metal by crossed cheques/DDs. In the event of not having received any inputs, nothing has been brought on record to show as to what happened to the amount so paid by M/s. MAL. g. M/s. Sujoy Transport Company which later became M/s. Saral Logistics Pvt. Ltd. had four offices. But the investigation did not go through the records of other offices other than located at Sagore Kuti Chauraha. 6. The appeal by Revenue relies on the submission of Shri Atlant Dwivedi Proprietor of M/s. Sujay Transport Company. We find that the submission is based on records mentioned at one of his offices situated at Sagar Kuti Chauraha. The original authority has recorded that vehicles which transported the duty paid inputs were deploy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirements from M/s Vikash Industrial Corporation without any notice or knowledge of its internal workings and nothing was brought to our attention wherefrom it may be concluded that it had reason to doubt the genuineness of the supplies effected by the said Vikash Industrial Corporation. Receipt of the disputed inputs stood duly evidenced by the appellant-company's receipted challans, stores receipt vouchers and stock ledgers and the appellant-company throughout maintained its stand that without receiving such inputs, it would not have been possible to manufacture finished goods subsequently cleared to the Indian Railways on payment of appropriate duty. Additionally, we take note of the following points which support the appellant's defence of limitation : a) The disputed credit pertained to the period November, 2008 to February, 2012, but the show cause notice had been issued beyond the normal period of one year. If indeed there have been justifiable basis to invoke the extended period, then also the adjudicating authority was required to pinpoint the same and it was not open to him to observe generally "..... all the ingredients for invocation of longer period i.e. fraud, suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
