w w w . L a w y e r S e r v i c e s . i n



Bengal Hammer Industries P. Ltd V/S Commissioner of Central Excise, Kolkata-II, Commissionerate


Company & Directors' Information:- T T G INDUSTRIES LIMITED [Active] CIN = U27209TN1987PLC014169

Company & Directors' Information:- V I P INDUSTRIES LIMITED [Active] CIN = L25200MH1968PLC013914

Company & Directors' Information:- A L M INDUSTRIES LIMITED [Active] CIN = U14100DL1996PLC129067

Company & Directors' Information:- S R K INDUSTRIES LIMITED [Active] CIN = L17121MH1991PLC257750

Company & Directors' Information:- S R INDUSTRIES LTD [Active] CIN = L29246PB1989PLC009531

Company & Directors' Information:- F E INDUSTRIES PRIVATE LIMITED [Active] CIN = U36100PB2003PTC026482

Company & Directors' Information:- N K INDUSTRIES LIMITED [Active] CIN = L91110GJ1987PLC009905

Company & Directors' Information:- T S I INDUSTRIES PRIVATE LIMITED [Under Process of Striking Off] CIN = U18101HR1997PTC034478

Company & Directors' Information:- CENTRAL INDIA INDUSTRIES LTD. [Active] CIN = U02710WB1938PLC209971

Company & Directors' Information:- H G I INDUSTRIES LIMITED [Active] CIN = L40200WB1944PLC011754

Company & Directors' Information:- R P INDUSTRIES PRIVATE LIMITED [Active] CIN = U27100GJ2011PTC075812

Company & Directors' Information:- D D INDUSTRIES LIMITED [Active] CIN = U74899DL1974PLC007169

Company & Directors' Information:- A G INDUSTRIES PVT LTD [Active] CIN = U27300HR1991PTC031378

Company & Directors' Information:- H. J. INDUSTRIES (INDIA) PRIVATE LIMITED [Active] CIN = U17120GJ2010PTC060769

Company & Directors' Information:- G R S INDUSTRIES LIMITED [Active] CIN = U00000PB2005PLC029159

Company & Directors' Information:- T S L INDUSTRIES LIMITED [Active] CIN = L65999WB1994PLC065255

Company & Directors' Information:- V S P INDUSTRIES PRIVATE LIMITED [Active] CIN = U17111TZ2005PTC011820

Company & Directors' Information:- M N INDUSTRIES PRIVATE LIMITED [Active] CIN = U24100TG2012PTC079737

Company & Directors' Information:- G I INDUSTRIES PRIVATE LIMITED [Active] CIN = U15312PB2010PTC033806

Company & Directors' Information:- E T C INDUSTRIES LIMITED [Active] CIN = U31200MP1995PLC009281

Company & Directors' Information:- S K INDUSTRIES PVT LTD [Active] CIN = U74899DL1991PTC045572

Company & Directors' Information:- S R V E INDUSTRIES LIMITED [Active] CIN = U03210TZ2006PLC012577

Company & Directors' Information:- P AND P INDUSTRIES LIMITED [Strike Off] CIN = U21010MH1992PLC068885

Company & Directors' Information:- N G INDUSTRIES LTD [Active] CIN = L74140WB1994PLC065937

Company & Directors' Information:- S L INDUSTRIES P. LTD. [Active] CIN = U15331WB1989PTC047543

Company & Directors' Information:- T R A T INDUSTRIES LIMITED [Active] CIN = U25199KL1996PLC010148

Company & Directors' Information:- B R INDUSTRIES LIMITED [Active] CIN = U74899DL1995PLC067120

Company & Directors' Information:- N M INDUSTRIES PRIVATE LIMITED [Active] CIN = U74120DL2008PTC175664

Company & Directors' Information:- S N L INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U17115RJ1994PTC008053

Company & Directors' Information:- J V INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1994PTC057081

Company & Directors' Information:- A R INDUSTRIES PVT LTD [Active] CIN = U27101HR1995PTC032569

Company & Directors' Information:- D V S INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049221

Company & Directors' Information:- C D INDUSTRIES LIMITED [Active] CIN = U27100MH1996PLC101277

Company & Directors' Information:- G V INDUSTRIES INDIA PRIVATE LIMITED [Active] CIN = U74900TG2014PTC096387

Company & Directors' Information:- G S M INDUSTRIES PRIVATE LIMITED [Active] CIN = U02001DL2002PTC117443

Company & Directors' Information:- B G INDUSTRIES LTD [Active] CIN = U26921ML1980PLC001830

Company & Directors' Information:- P K INDUSTRIES PRIVATE LIMITED [Active] CIN = U51900DL2012PTC241654

Company & Directors' Information:- M D INDUSTRIES PRIVATE LIMITED [Active] CIN = U91110GJ1994PTC022025

Company & Directors' Information:- L C INDUSTRIES PRIVATE LIMITED [Active] CIN = U15122UP2013PTC055697

Company & Directors' Information:- G. A. INDUSTRIES PRIVATE LIMITED [Active] CIN = U15435MH2005PTC151817

Company & Directors' Information:- P A S INDUSTRIES INDIA PRIVATE LIMITED [Active in Progress] CIN = U17121TZ2005PTC012171

Company & Directors' Information:- V AND S INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1990PTC039251

Company & Directors' Information:- M K J INDUSTRIES PRIVATE LIMITED [Active] CIN = U19111UP1989PTC010468

Company & Directors' Information:- P B INDUSTRIES PRIVATE LIMITED [Active] CIN = U29120MP1994PTC008840

Company & Directors' Information:- R & M INDUSTRIES PRIVATE LIMITED [Active] CIN = U24297TN1972PTC006185

Company & Directors' Information:- A M INDUSTRIES LTD [Active] CIN = U21012WB1977PLC030854

Company & Directors' Information:- A AND S INDUSTRIES PRIVATE LIMITED [Active] CIN = U17117DL1995PTC064137

Company & Directors' Information:- M C INDUSTRIES LTD [Active] CIN = U27106WB1993PLC058995

Company & Directors' Information:- D R INDUSTRIES PRIVATE LIMITED [Active] CIN = U24100WB2011PTC160058

Company & Directors' Information:- U K INDUSTRIES PRIVATE LIMITED [Active] CIN = U24241WB1988PTC044355

Company & Directors' Information:- M G I INDUSTRIES PVT LTD [Active] CIN = U27310GJ2006PTC048707

Company & Directors' Information:- A D INDUSTRIES PRIVATE LIMITED [Active] CIN = U18101WB2008PTC131561

Company & Directors' Information:- V J INDUSTRIES PRIVATE LIMITED [Active] CIN = U29253KA2009PTC050226

Company & Directors' Information:- V T INDUSTRIES PVT LIMITED [Active] CIN = U29150WB1985PLC039217

Company & Directors' Information:- V T INDUSTRIES PVT LIMITED [Active] CIN = U29150WB1985PTC039217

Company & Directors' Information:- G R INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U34300PB1996PTC018671

Company & Directors' Information:- M. K. INDUSTRIES PRIVATE LIMITED [Active] CIN = U15549WB2008PTC130116

Company & Directors' Information:- R S V INDUSTRIES PRIVATE LIMITED [Active] CIN = U52399MH2008PTC180489

Company & Directors' Information:- K. A. INDUSTRIES PRIVATE LIMITED [Active] CIN = U14220JH2008PTC013409

Company & Directors' Information:- D K INDUSTRIES LIMITED [Active] CIN = U45202CH1994PLC014627

Company & Directors' Information:- BENGAL INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL2001PTC110177

Company & Directors' Information:- D G INDUSTRIES PVT LTD [Active] CIN = U36942WB1946PTC013526

Company & Directors' Information:- R I L INDUSTRIES PRIVATE LIMITED [Active] CIN = U70101DL1993PTC052678

Company & Directors' Information:- I S INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U29100GJ2009PTC057308

Company & Directors' Information:- B M INDUSTRIES PRIVATE LIMITED [Active] CIN = U17000MH1997PTC109621

Company & Directors' Information:- R V S INDUSTRIES PRIVATE LIMITED [Active] CIN = U17111TZ1995PTC006398

Company & Directors' Information:- B N INDUSTRIES PRIVATE LIMITED [Active] CIN = U67120AS1994PTC004273

Company & Directors' Information:- A J INDUSTRIES PRIVATE LIMITED [Active] CIN = U17120MH2004PTC145040

Company & Directors' Information:- S. A. A INDUSTRIES PRIVATE LIMITED [Active] CIN = U01549TZ1997PTC007927

Company & Directors' Information:- C R I INDUSTRIES PRIVATE LIMITED [Amalgamated] CIN = U29120TZ2002PTC010129

Company & Directors' Information:- A C T INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1984PTC018724

Company & Directors' Information:- G B INDUSTRIES PRIVATE LIMITED [Active] CIN = U29220PN2011PTC139883

Company & Directors' Information:- S D B INDUSTRIES LIMITED [Active] CIN = U27107MP1996PLC010394

Company & Directors' Information:- M M INDUSTRIES PRIVATE LIMITED [Active] CIN = U31300CT2008PTC020916

Company & Directors' Information:- A C INDUSTRIES PVT LTD [Active] CIN = U29299WB2006PTC109474

Company & Directors' Information:- K M INDUSTRIES PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U74899DL1991PTC043295

Company & Directors' Information:- C J INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U25209MH1998PTC116707

Company & Directors' Information:- N P INDUSTRIES LTD [Strike Off] CIN = U15549PB1989PLC009426

Company & Directors' Information:- J. L. INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U29141MP2008PTC020731

Company & Directors' Information:- I K INDUSTRIES PRIVATE LIMITED [Active] CIN = U24100MH2010PTC199474

Company & Directors' Information:- H. D. INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U27310MH2011PTC216080

Company & Directors' Information:- R. D. G. INDUSTRIES PRIVATE LIMITED [Active] CIN = U26960DL2008PTC182480

Company & Directors' Information:- R B INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U28999DL2008PTC177248

Company & Directors' Information:- H & H INDUSTRIES PRIVATE LIMITED [Active] CIN = U34100DL2010PTC204604

Company & Directors' Information:- M J INDUSTRIES PRIVATE LIMITED [Active] CIN = U15203KA2011PTC060675

Company & Directors' Information:- B R V INDUSTRIES PRIVATE LIMITED [Active] CIN = U32301UP1995PTC018704

Company & Directors' Information:- A. G. INDUSTRIES LIMITED [Strike Off] CIN = U25201UP1994PLC017291

Company & Directors' Information:- B R INDUSTRIES LIMITED [Strike Off] CIN = U15204AS1993PLC003930

Company & Directors' Information:- I P M INDUSTRIES LIMITED [Active] CIN = U25200DL1995PLC068554

Company & Directors' Information:- M R INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74900UP2008PTC036443

Company & Directors' Information:- R D I INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74900DL1995PTC065508

Company & Directors' Information:- J G INDUSTRIES LTD [Active] CIN = L15141WB1983PLC035931

Company & Directors' Information:- V G INDUSTRIES PRIVATE LIMITED [Active] CIN = U15139JK2015PTC004570

Company & Directors' Information:- S N INDUSTRIES PRIVATE LIMITED [Active] CIN = U29211UP1951PTC002319

Company & Directors' Information:- K G INDUSTRIES PVT LTD [Active] CIN = U29130WB1951PTC019868

Company & Directors' Information:- N S INDUSTRIES PRIVATE LIMITED [Under Process of Striking Off] CIN = U74120UP2012PTC053986

Company & Directors' Information:- D U INDUSTRIES PRIVATE LIMITED [Active] CIN = U29230GJ2016PTC091588

Company & Directors' Information:- S R P INDUSTRIES LIMITED [Amalgamated] CIN = U00061BR1984PLC002023

Company & Directors' Information:- C P INDUSTRIES PVT LTD [Strike Off] CIN = U29303MP1949PTC000846

Company & Directors' Information:- J B INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74999MH2013PTC245506

Company & Directors' Information:- S J V INDUSTRIES LTD [Amalgamated] CIN = U15421WB1982PLC035521

Company & Directors' Information:- V V INDUSTRIES PVT LTD [Strike Off] CIN = U99999DL1980PTC010427

Company & Directors' Information:- K K INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U65100DL1982PTC013046

Company & Directors' Information:- A T C INDUSTRIES LTD [Strike Off] CIN = U27109AS1984PLC002201

Company & Directors' Information:- N V INDUSTRIES PVT LTD [Active] CIN = U51909WB1953PTC020952

Company & Directors' Information:- A TO Z INDUSTRIES PVT LTD [Strike Off] CIN = U31908AS1987PTC002804

Company & Directors' Information:- L K INDUSTRIES PRIVATE LIMITED [Active] CIN = U17291MH2012PTC233546

Company & Directors' Information:- G S C INDUSTRIES PRIVATE LTD [Active] CIN = U92114DL1956PTC002616

Company & Directors' Information:- G G INDUSTRIES PRIVATE LIMITED [Active] CIN = U27320UP1969PTC003282

Company & Directors' Information:- K S INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U31909MH1960PTC011707

Company & Directors' Information:- P R INDUSTRIES PVT LTD [Active] CIN = U21014DL1971PTC005738

Company & Directors' Information:- R K I INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U29190DL2012PTC233413

Company & Directors' Information:- R K INDUSTRIES PVT LTD [Strike Off] CIN = U25202AS1988PTC003132

Company & Directors' Information:- INDUSTRIES CORPN OF BENGAL LTD [Strike Off] CIN = U17111WB1940PLC010029

Company & Directors' Information:- K R INDUSTRIES INDIA PRIVATE LIMITED [Active] CIN = U25190KA2012PTC062367

Company & Directors' Information:- Y K INDUSTRIES PRIVATE LIMITED [Active] CIN = U19115UP2012PTC051151

Company & Directors' Information:- E S INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74999TN2012PTC086119

Company & Directors' Information:- I B INDUSTRIES LTD. [Strike Off] CIN = U28992WB1990PLC050469

Company & Directors' Information:- V I INDUSTRIES LTD [Strike Off] CIN = U36934WB1951PLC019890

Company & Directors' Information:- J M INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U05002UP1952PTC002456

Company & Directors' Information:- L F INDUSTRIES PRIVATE LIMITED [Active] CIN = U17291UP2015PTC068602

Company & Directors' Information:- A K S INDUSTRIES PVT LTD [Active] CIN = U27201WB1946PTC013433

Company & Directors' Information:- V M V INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U26990GJ2013PTC076945

Company & Directors' Information:- S K INDUSTRIES LIMITED [Under Process of Striking Off] CIN = U29248PN1948PLC001948

Company & Directors' Information:- S P INDUSTRIES PVT LTD [Strike Off] CIN = U20232AS1980PTC001853

Company & Directors' Information:- V N R INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U21090AP2012PTC081525

Company & Directors' Information:- A K INDUSTRIES PVT LTD [Active] CIN = U51109WB1944PTC011764

Company & Directors' Information:- K INDUSTRIES PVT LTD [Strike Off] CIN = U99999KA1946PTC000938

Company & Directors' Information:- G I P INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U52605MH2015PTC263962

Company & Directors' Information:- C. L. INDUSTRIES PRIVATE LIMITED [Active] CIN = U27109RJ2014PTC045306

Company & Directors' Information:- R. A. M INDUSTRIES PRIVATE LIMITED [Active] CIN = U17120MH2014PTC254820

Company & Directors' Information:- S. B. INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74900PN2012PTC144181

Company & Directors' Information:- A & P INDUSTRIES PRIVATE LIMITED [Active] CIN = U36935TG2014PTC095781

Company & Directors' Information:- C & N INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U40200TG2014PTC095187

Company & Directors' Information:- B S B INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U45200TG2013PTC088059

Company & Directors' Information:- K S A B INDUSTRIES PRIVATE LIMITED [Active] CIN = U51909WB2012PTC181903

Company & Directors' Information:- S V S INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U36100JK2013PTC003808

Company & Directors' Information:- R D M INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U31100DL2013PTC252294

Company & Directors' Information:- INDUSTRIES INDIA PRIVATE LIMITED [Strike Off] CIN = U00349KA1947PTC000501

Company & Directors' Information:- A V K INDUSTRIES INDIA PRIVATE LIMITED [Strike Off] CIN = U52100KA2012PTC066761

Company & Directors' Information:- S V INDUSTRIES PVT LTD [Strike Off] CIN = U27104WB1960PTC024715

Company & Directors' Information:- J INDUSTRIES PVT LTD [Strike Off] CIN = U18101OR1960PTC000388

Company & Directors' Information:- THE CENTRAL INDUSTRIES LIMITED [Dissolved] CIN = U99999MH1949PLC010460

Company & Directors' Information:- T & M INDUSTRIES LIMITED [Liquidated] CIN = U99999TN1956PLC002904

Company & Directors' Information:- INDUSTRIES (INDIA) PRIVATE LIMITED [Under Process of Striking Off] CIN = U51109BR1946PTC000228

Company & Directors' Information:- K INDUSTRIES LIMITED [Not available for efiling] CIN = U99999MH1946PTC005438

    Excise Appeal No. 226 of 2010 and Excise Appeal No. 227 of 2010 (Arising out of Order-in-Original No. 47/Denovo/Commr./CE/Kol-II/Adjn/2009-10 Dated 04.01.2010 passed by Commissioner of Central Excise, Kolkata-II)

    Decided On, 03 January 2020

    At, Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata

    By, THE HONORABLE JUSTICE: P.K. CHOUDHARY
    By, MEMBER AND THE HONORABLE JUSTICE: BIJAY KUMAR
    By, MEMBER

    For Petitioner: B.N. Chattopadhyay, Consultant And For Respondents: D. Halder, Authorised Representative



Judgment Text


1. This appeal arises out of order in original dated 02.05.2000 passed by the Commissioner of Central Excise, Kolkata, (II) against the appellant. By the said order learned Adjudicating Authority has disallowed modvat credit of Rs. 78,91,213/- (Rupees Seventy Eight Lakh Ninety One Thousand Two Hundred Thirteen) only availed by them and ordered recovery under the provisions of Rule 57I of the Central Excise Rules, 1994 alongwith interest under the provisions of Rule 57I(iii) of the Rules. The Adjudicating Authority has imposed penalty under Rule 173Q(bb) and Rule 57(1)(4) of Central Excise Rule 1994. The Adjudicating Authority also appropriated an amount of Rs. 50,00,000/- (Rupees Fifty Lakhs) only as deposited by the appellant towards the aforesaid liabilities of payment of Central Excise duty. A penalty of Rs. 24000/- (Rupees twenty four thousand) only under Rule 209A of the Rules was also imposed upon the appellant No. (2), Shri Kamal Kumar Choudhary, the Director of the appellant company. Being aggrieved by the said order the appellants are in appeal before us.

2. This is the second round of litigation before this Tribunal. In the first round the Tribunal vide its Order No. A-1151-1152/Kol/08 dated 17.11.2008 set aside the Order-in-Original No. 03/Ch.-72/Commr./CE/Kol-ii/Adjn/04 dated 28.01.2004 passed by the Commissioner of Central Excise Kolkata.

3. The brief facts of the case are that the appellant is a manufacturer of alloy and non alloy Steel Ingots falling under Tariff Act item No. 7206.90 of the First schedule to the Central Excise Tariff Act, 1985. During the course of manufacture of their finished goods, the appellant had availed Modvat Credit of duty paid on the raw materials during the year 1995-1996 (01.04.1995 to 28.01.1996) on the basis of alleged fake duty paying document fraudulently prepared and supplied by a number of registered dealers without actually supplying the corresponding input materials mentioned in the said duty paying documents and utilized the said credit availed on an irregular manner towards payment of Central Excise duty on removal of their final product and therefore evaded payment of Central Excise Duty equivalent to the amount of credit irregularly taken to the extent of Rs. 78,91,213/-.

4. The case was investigated by the Directorate General of Antievasion and during investigation Shri Kamal Kumar Choudhary, was arrested on 10.02.1996 and released on bail on 11.07.1996. The enquiry were also made with a number of registered dealers of Iron and Steel Product and that revealed that these registered dealers used to procure the duty paying documents only which were primarily being sold by companies like SAIL and TISCO. The goods sold by the manufacturers were being diverted to some other sectors by the registered dealers, which were being sold in cash without accounting thereof. The registered dealers used to take credit of these materials in their RG23D Account and passed on such credit to mini-steel plants by issuing their own modvatable invoices without any transaction in the corresponding goods. The recipient manufacturers thereafter availed modvat credit on the strength of such fraudulent documents whereas the raw material actually used by such recipient/manufacturers were bazaar scrap, which could have been procured without any duty paying documents. Thus, the entire modvat credit taken by the registered dealers and thereafter transferred to the appellant to avail modvat credit under Rule 57 of the Central Excise Rules in a irregular manner.

5. On scrutiny of the records, like RG23A part-II Account of the appellant with the input invoices, it appeared that the appellant had availed modvat credit on iron and steel materials on the basis of invoices issued by the following dealers.

(i) M/s. Ram Kumar, Kamal Kumar.

(ii) M/s. Vindhya Steel.

(iii) M/s. Saraswati Enterprises.

(iv) M/s. Sree Bihariji Traders,

(v) M/s. R.S. Ispat Supply Co. Pvt. Ltd.

(vi) M/s. Mangal Steel and Allied Industries,

(vii) M/s. Bhiwaniwala Steels Pvt. Ltd.

6. Separate investigations were carried out against each of these dealers regarding alleged issuance of only modvat documents and show cause notices were issued to them also.

7. Shri Kamal Kumar Agarwal, Partner of M/s. Ram Kumar and Shri Kamal Kumar in his statement dated 27.01.1996, recorded under Section 14 of Central Excise and Salt Act, 1944 stated that he used to deal with SAIL, TISCO, IISCO and used to supply steel products to re-rollers/cutters and other manufacturer. This supply was made in cash transactions without any official accounting like bills, chalan etc. The purchase papers of these traders/dealers were thereafter purchased by him in his company's name, M/s. Ram Kumar, Kamal Kumar and Saraswati Enterprises. For these purchases he used to get back cash from the buyer less the commission which used to vary between Rs. 50-100 per M/T. Thereafter, he used to sell these documents to furnace units like Agarwal Steel Complex, Bengal Hammer, Sarvopari and Refine and others. The system was to receive payment in cheque/Purchase order/DD from these units for the value of the material covered by the documents sold by him and return cash minus his commission and brokerage which varies between Rs. 100-250/-.

8. The appellant had been using 'bazaar scrap' as apparent from the statement of Shri Haradhan Dutta, Excise Assistant of appellant unit, that the company has only procured modvatable invoices from the dealer and took credit without receipt of the input material.

9. The technical feasibility, economic viability for use of such inputs material by the appellant was investigated by DGAE (CE) and it was found that the use of such material in production of MS Ingots by using induction furnace of small capacity is not viable. There was neither technical feasibility nor infrastructure facility available to the appellant for the use of material for which cenvatable invoices were procured. It was also alleged in the investigation that there could not have been economic viability of using such material by the appellant.

10. The show cause notice dated 02.05.2000 was therefore issued to both the appellants which culminated into the impugned order after the remand direction of this Tribunal.

11. Learned Advocate on behalf of the appellant submits as under:

(i) That the appellant has submitted their reply to the Adjudicating Authority, both at the stage of original adjudication and subsequent adjudication in terms of remand order that they have availed the modvat credit after following the legal requirements as in Central Excise Rule. They have maintained RG23 A part-I and part-II and submitted the copies thereof to the jurisdictional excise authority regularly. The duty payment documents were exempted by the Central Excise Officials and subsequently those were defaced under the signature of the jurisdictional Central Excise Officials. In such a situation, there is a no question of non receipt of inputs by the appellant and subsequent use thereof in the manufacturing process.

(ii) Shri Kamal Kumar Choudhary, the other appellant was harassed, humiliated and arrested and forced to deposit the amount of Rs. 50 lakhs during the period from 30.07.1996 to 01.02.1997.

12. It was also submitted that the appellant had received the input materials from seven registered central excise dealers viz. Shri Ram Kumar, Kamal Kumar, Vindhya Steels and Saraswati Enterprises, to whom the show cause notices were also issued and demands were confirmed. However, they got exonerated by the Tribunal. The department filed appeal against the order of the Tribunal in the case of Vindhya Steel before Hon'ble High Court and the same was not admitted. Therefore, the finding in respect of Vindhya Steel has attained finality. The position about the other appellant was not known to the appellant.

13. The Learned Advocate has also placed reliance on the decision of this Tribunal in case of Shri Mahesh Kumar Goel and another Vs. Commissioner of Central Excise, Kolkata-II (Order No. A-827-830 dated 18.09.1998), wherein it is held that the evidence relied by the department against the registered dealers, who passed on the credit to their customers, were not adequate to prove the case against the dealers. Such allegations are not maintainable under the law. This order of the Tribunal has been up held by the Hon'ble Kolkata High Court.

14. Shri Hardhan Dutta, who was produced for cross examination before the Adjudicating Authority on 17.11.1996, categorically denied his statement dated 11.07.1996, which is relied upon by the department in the proceeding. He further stated that his statement was obtained by Shri Anand Gupta, officials of DGAE, kolkata under duress.

15. In view of above, the Learned Advocate contended that the Modvat credit has been availed on the basis of receipts of the input material and payment of central excise duty to the registered dealers. Accordingly, no case is made out against the appellant and the impugned order is not sustainable.

16. Learned Departmental Representative, however, supports the impugned order on the basis of findings contained therein.

17. We have gone through the facts of the case and perused the appeal record. It is apparent from the impugned order that the Learned Adjudicating Authority, in respect of specific direction from this Tribunal, failed to adhere to the remand direction regarding consideration of submission made by the appellant and also the legal provisions. We find that this Tribunal in case of M/s. Vindhya Steel, who happened to be one of the supplier of the input material, has set aside the order. An appeal against that order was also sustained by Hon'ble High Court of Kolkata. In the circumstances, we find that no charge against the appellant would sustain and the impugned order is bad in law.

18. We also find that the appellant had been submitting the document such as RG23A part (1) and RG23 part (2) alongwith the invoices on which modvat credits had been taken alongwith monthly RT-12 reports. The duty paying documents has also been defaced by the departmental officers while assessing RT-12 return of the appellant unit. In such a circumstance there is no scope of invocation of extended period of limitation, which has been done in this case. The show cause notice has been issued on 02.05.2000 for the period 01.04.1995 to 28.01.1996. The demand is therefore time bared and not sustainable at all.

19. We also find that the statement of Shri Hardhan Dutta, on which the investigation relied upon heavily, has been retracted at the time of cross examination before the Adjudicating Authority. On this ground also the proceeding gets vitiated and the demand is thus not sustainable and so is the impugned order. In this regard we find that the appellant had been obtaining raw materials/inputs from the registered dealer after due verification and on payment of appropriate central excise duty and has availed credit thereon under modvat scheme. The department is alleging that there is no technical feasibility, infrastructural facilities available with the appellant for use of such input material also taking into the consideration of economic validity of use of such goods. We are of the opinion that this type of investigation is purely on the basis of imagination and without any legal basis. It is up to the manufacturer to use the goods as input or raw material in the process of manufacture and the department cannot force them to use a particular kind of input/raw material for the manufacture of finished product considering their economic viability, technical feasibility and infrastructural requirement. The department has also accepted the payment of duty on the goods sold by these dealers and hence it cannot deny the availment of modvat credit by the buyer of these goods, if put to use in the manufacturing.

20. In this regard we find that the decision of Hon'ble Allahabad High Court in case of Commissioner of Central Excise, Customs and Service Tax Vs. Juhi Alloys Limited : 2014 (302) E.L.T. 487 (All.) is squarely applicable to the facts of the present case. This decision has been referred in case of Cenvat Credit Rules 2004, however, the same would be equally applicable in case of modvat as well. The relevant paragraph of the order is reproduced of the order:

4. This view has been affirmed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short 'the Tribunal') in its judgment. The Tribunal has found that the revenue has not disputed that the supplier from whom the assessee received the raw materials [MK Steels (P) Ltd.] has raised dealers invoices giving all the particulars required to be furnished in law. Moreover, it was also not disputed that the assessee had received the inputs and entered them in its records and these inputs were used in the manufacture of final products, which were cleared on payment of duty. The goods travelled from the dealer to the assessee under the cover of Form 31 issued by the Uttar Pradesh Trade Tax Department. The ledger account and RG 23A records prove the receipt of the goods. Further, the payments were made by cheque. The Tribunal was of the view that in terms of the provisions of Rule 7(4) of the Rules of 2002 and Rule 9(5) of the Rules of 2004, a manufacturer is required to check the particulars as mentioned in the invoice issued by the first stage dealer and he should be familiar with him. The Tribunal has also held that it would be impractical for an assessee to further check the records maintained by the first stage dealer and to verify its correctness. It would be sufficient for the assessee to buy the goods from the first stage dealer whose status he has checked and verified. There was no dispute that M/s. M.K. Steels (P) Ltd. was registered as a dealer with the revenue. In these circumstances, it was held that the denial of Cenvat credit to the assessee was improper. The order of the Commissioner (Appeals) was, accordingly, upheld by the Tribunal.

5. On behalf of the revenue, reliance has been placed on the provisions of Rule 9(3) of the Rules of 2004. According to the revenue, the assessee was obliged under Rule 9(3) to take all reasonable steps to ensure that the inputs in respect of which he has taken the cenvat credit are goods on which the appropriate duty of excise, as indicated in the documents accompanying the goods, has been paid. In the present case, it was urged that the assessee ought to have made an enquiry which would have indicated that Sarla Ispat (P) Ltd. that had supplied the original raw material was a fictitious entity.

Rule 9(3) of the Rules of 2004, insofar it is material, provides as follows:-

"(3) The manufacturer or producer of excisable goods or provider of output service taking Cenvat credit on input or capital goods or input service, or the input service distributor distributing Cenvat credit on input service shall take all reasonable steps to ensure that the input or capital goods or input service in respect of which he has taken the Cenvat credit are goods or services on which the appropriate duty of excise or service tax as indicated in the documents accompanying the goods or relating to input service, has been paid."

6. The Explanation to Rule 9(3) of the Rules of 2004 provides a deeming fiction where a manufacturer or producer of excisable goods who takes Cenvat credit on inputs, would be deemed to have taken reasonable steps, if he satisfies himself about the identity and address of the manufacturer or supplier or provider of input services, as the case may be, issuing the documents specified in sub-rule (1) on the basis of his personal knowledge or on the basis of a certificate given by a person with whom he is familiar or on the basis of a certificate issued to the manufacturer or the supplier by the Superintendent of Central Excise concerned. In other words, the Explanation to Rule 9(3) provides a deeming definition as to when a manufacturer or a purchaser of excisable goods would be deemed to have taken reasonable steps. However, even in a situation where Explanation to Rule 9(3) is not attracted, it would be open to an assessee to establish independently within the meaning of the substantive part of Rule 9(3) that he had in fact taken reasonable steps. Whether an assessee has in fact taken reasonable steps, is a question of fact.

7. In the present case, both the Commissioner (Appeals) and the Tribunal have given cogent reasons to indicate that the assessee had taken reasonable steps to ensure that the inputs in respect of which he has taken the Cenvat credit are goods on which the appropriate duty of excise, as indicated in the documents accompanying the goods, has been paid. Admittedly, in the present case, the assessee was a bona fide purchaser of the goods for a price which included the duty element and payment was made by cheque. The assessee had received the inputs which were entered in the statutory records maintained by the assessee. The goods were demonstrated to have travelled to the premises of the assessee under the cover of Form 31 issued by the Trade Tax Department, and the ledger account as well as the statutory records establish the receipt of the goods. In such a situation, it would be impractical to require the assessee to go behind the records maintained by the first stage dealer. The assessee, in the present case, was found to have duly acted with all reasonable d

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iligence in its dealings with the first stage dealer. The view which the Tribunal has taken is consistent with the judgment of the Jharkhand High Court in Commissioner of C.Ex., East Singhbhum v. Tata Motors Ltd: 2013 (294) E.L.T. 394 (Jhar.), where it was held as follows "... Once a buyer of inputs receives invoices of excisable items, unless factually it is established to the contrary, it will be presumed that when payments have been made in respect of those inputs on the basis of invoices, the buyer is entitled to assume that the excise duty has been/will be paid by the supplier on the excisable inputs. The buyer will be therefore entitled to claim Modvat credit on the said assumption. It would be most unreasonable and unrealistic to expect the buyer of such inputs to go and verify the accounts of the supplier or to find out from the department of Central Excise whether actually duty has been paid on the inputs by the supplier. No business can be carried out like this, and the law does not expect the impossible." 8. The judgment of the Division Bench of the Himachal Pradesh High Court in A.B. Tools Limited v. Commissioner of Central Excise : 2010 (256) E.L.T. 382 (H.P.), on which reliance has been placed by the revenue, does not indicate that any contrary view of the law has been taken. 9. Ultimately, the issue in each case is whether, within the meaning of Rule 9(3) of the Rules of 2004, the assessee has taken reasonable steps to ensure that the inputs in respect of which he has taken Cenvat credit were goods on which appropriate duty of excise was paid. Once it is demonstrated that reasonable steps had been taken, which is a question of fact in each case, it would be contrary to the Rules to cast an impossible or impractical burden on the assessee. 21. We therefore set aside the impugned order and allow the appeals filed by both the appellants with consequential benefit as per law.
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