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C.C.E. & S. Tax, Surat-II V/S Tejus Orange Polymers Ltd.

    Central Excise Appeal Nos. 10046 to 10050 of 2015-SM (Arising out of the Order-in-Appeal Nos. SUR-EXCUS-001-126 & 127/2014-15 dated 30.9.2014 passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, Surat-I) and Final Order Nos. A/10214 -10218/2018

    Decided On, 22 January 2018

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad

    By, MEMBER

    For Petitioner: Jeetesh Nagori, A.R And For Respondents: Willingdon Christian, Advocate

Judgment Text

1. These appeals are filed by Revenue against the Order-in-Appeal No. SUR-EXCUS-001-126 & 127/2014-15 dated 30.9.2014 passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, Surat I. Since all these appeals are directed against the same Order-in-Appeal, they are being disposed of by a common order.

2. The relevant facts that arises for consideration after filtering out the unnecessary details are M/s. Tejus is a proprietary concern having Central Excise registration for manufacturing of excisable goods falling under Chapter 54. The main Respondent had availed CENVAT credit on the strength of invoices issued by one of the Respondent M/s. Orange Polymers Ltd., Surat (OPL); M/s. OPL, Surat were registered with the Central Excise department as registered dealer. The second main Respondent M/s. OPL were situated nearly on the same premises. It is the case of the Revenue that the invoices issued by OPL did not contain the details as required under the provisions of Rule 9(2) of CENVAT Credit Rules, 2004. Accordingly, the investigation was started. After detailed investigation, show cause notice was issued to the main Respondent for denial of CENVAT credit on various allegations. The said show cause notice was contested by the main Respondent and M/s. OPL on merits as well as on limitation. The adjudicating authority after following the due process of law confirmed the demand of CENVAT cred

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it as being liable to main Respondent M/s. Tejus along with interest and also imposed penalty on them; imposed penalty of equivalent to second Respondent M/s. OPL along with various other penalties and imposed penalty on the individual of equivalent amount. All the Respondents preferred appeal before the first appellate authority and after following due process of law, the impugned order set aside the order-in-original and allowed the Appeal of the respondents herein.

3. Ld. Additional Commissioner (A.R.) for the Revenue after giving brief outline on the issues, took the Bench to the show cause notice, order-in-original and order-in-appeal. He specifically states that M/s. Tejus had no facility of manufacturing polyester fibre which is alleged in the paragraph No. 6 of the show cause notice; the statement of owner of Tejus indicates that they have procured the goods from OPL for trading purpose; and in the absence of manufacturing activity that could be undertaken on the goods procured from OPL; CENVAT credit which has been availed is incorrect. Assailing the order-in-appeal, he submits that the documents on which CENVAT credit was availed are also faulty as the material value on the duty paying documents never received by the main Respondent, M/s. Tejus; to buttress this proposition, he submits that invoices on which CENVAT credit was availed was from OPL, Surat and both the units are thus located on first floor and second floor of the same building despite duty paying documents indicated the movement of copies by vehicle whose registration No. is GJ 5U 1936. It is his submission that the vehicle registration which was mentioned in the documents are wide and definitely the vehicle cannot move from first floor to second floor and vice versa for delivery of the goods to M/s. OPL factory at Nandurbar was closed and the said factory was auctioned by the bank, hence the duty liability on the invoices on which credit was availed by the main Respondent M/s. Tejas remain unsubstantiated and it is very clearly recorded by the proprietor of the main Respondent that they had no intention to manufacture any man-made fibres or process them from grey fabrics received from M/s. OPL, Surat. It is his submission that during the relevant period the duty liability on grey fabrics was 8% ad valorem while the duty paying document indicates that the duty liability has been discharged at the rate of 35% ad valorem. It is his submission that this difference shows that there was modus operandi of transfer of unreliable CENVAT credit and utilized the same by the main Respondent. He would bring to the notice of the Bench that communication attached to the demand cum-show cause notice and indicate that even the monthly returns filed by the main Respondent did not indicate that they are eligible for CENVAT credit. It is also his submission that the main person i.e. Rajiv Gupta, Director of M/s. OPL could not produce returns filed by them for various quarters. It is his submission that M/s. Tejus has not paid the consideration for the moment and they have been paid partly by cash and partly by book adjustment which has shown that there was wrong in the entire transaction. It is his submission that the first appellate authority is totally in error in holding that that order-in-original is incorrect.

4. Ld. Counsel Shri Willingdon Christian for the Respondents draws my attention to the facts and circumstances of the record and submits that the manufacturer of inputs M/s. OPL, Nandurbar had factory and were manufacturing and registered with the authorities during the relevant time and such genuinity is not disputed M/s. OPL, Nandurbar had failed to pay the duty on the goods cleared by them and filed monthly returns with the authorities. Thus the statements recorded by Revenue are inculpatory and are absolutely exculpatory. The invoices on which CENVAT was availed were issued by registered dealer M/s. OPL and no Panchnama was drawn nor any inventory, discrepancy is noticed. It is his submission that the entire case of the Revenue is that CENVAT credit availed by the respondents is fictitious and OPL has availed cenvat credit without movement of goods and OPL issued another invoice without payment of duty. He submits that first appellate authority has brought on record to hold that cenvat credit needs to be allowed. It is his submission that the adjudicating authority has raised remark on the assumption and presumption without recording findings. He relies on the following case laws:

a) Prayagraj Dyeing & Printing Mills Pvt. Ltd. vs. UOI : 2013 (290) ELT 61 (Guj.)

b) Premraj Dyg. & Ptg. Mills Pvt. Ltd. vs. C.C.E. : 2014 (306) ELT 145 (Guj.)

c) C.C.E. vs. Panchmukh Processors P. Ltd. : 2013 (291) ELT 187 (Guj.)

d) C.C.E. vs. Jyoti Ltd. 2008 (223) ELT 171 (Guj.)

e) C.C.E. vs. Tata Motors Ltd. : 2013 (294) ELT 394 (Jhar.)

5. It is his further submission that show cause notice dated 23.1.2012 demanding cenvat credit availed is patently time barred as the main Respondent had filed monthly return to the authorities below which have been accepted and acknowledged. It is his further submission that main Respondent had been registered with the authorities for manufacturing man-made fabrics (processed).

6. On careful consideration of the submissions made by both sides and on perusal of the records, I find that the issue is correctly brought out by the first appellate authority in the impugned order wherein he had recorded as under:

5.5 Without prejudice to the above discussions, I hereby proceed to decide the case on the basis of the facts and circumstances and legal provisions as hereinunder paras. On going through the discussion and findings portion of impugned order in original, I find that the ld. Adjudicating authority has confirmed the demand on the basis of the following main reasons:

(i) There was fraudulent purchase and mere paper transaction between the appellant and their supplier without any movement of goods,

(ii) The supplier M/s. Orange did not file their periodical returns with the department,

(iii) M/s. Orange has counterfeited the documents i.e. invoices with fraudulent intention to help M/s. Tejus to avail bogus and fraudulent CENVAT credit,

(iv) No payment was made to M/s. Orange by the applicant against the said receipt of Grey fabric.

(v) CENVAT credit was passed on @ 35% instead of applicable rate of 8% at the material time by the supplier to the Appellant.

(vi) Shri Tejus R. Kapadia in his capacity as proprietor of the appellant unit and Executive Director of M/s. Orange Polymrs Ltd. was the key person in the entire episode.

5.6 I accordingly find that the following central issues are required to be decided in this case:

(i) What are the conditions to avail CENVAT credit on inputs.

(ii) What are the responsibilities of the purchaser of inputs to make them eligible to avail CENVAT credit,

(iii) What are the responsibilities of the supplier of the inputs and issuer of CENVAT credit.

After reproducing the above mentioned issue involved, the first appellate authority has specifically dealt with each issue independently.

7. While dealing with issue No. 1 which is reproduced herein above and after going through the provisions of Rule 4 of Cenvat Credit Rules, 2004 he specifically states as under:

I have gone through the invoices on the basis of which the CENVAT credit has been availed by the Appellant unit and find that it has mention of all the prescribed details. I find that mention of vehicle Registration No. was not warranted in this case since the supplier and receiver of the goods were situated in the same premises, and accordingly, mention of incorrect vehicle No. has little effect regarding admissibility of CENVAT credit, and such error may be treated as the clerical mistake as contended by the appellant in various statements and grounds of appeals since nothing contrary is apparent from the records. In this context, I would rely upon the judgment of Hon'ble CESTAT, Ahmedabad in Motibhai Iron & Steel Industries vs. C.C.E., Ahmedabad II reported in 2014 (01) LCX 0016, which has discussed similar issue in details and while allowing..

As against the above said findings it is noticed that the Revenue has not contested the same in the grounds of appeal. It is not contesting the findings of the first appellate authority on the facts involved as there is no dispute that the main Respondent had registration certificate for manufacturing goods by OPL, Nandurpar and on receipt of the same in their factory premises of the main Respondent without not filing return by OPL will not have bearing on main issue involved and payment of consideration by the main respondent to OPL either partly through cash or partly through book adjustment has been properly gone into in details by the first appellate authority and considered the Chartered Accountant certificate to come to the conclusion that the said credit cannot be denied. It is also seen from the record that the first appellate authority was correct in holding that mentioning or non-mentioning of registration number of the vehicle for movement of goods in any case will not influence the findings inasmuch as it can be clerical error and that there being no dispute of the duty liability discharged on the finished goods, eligibility to avail cenvat credit being not in question, denial of cenvat credit seems to be erroneous.

8. As regards the issue No. 2, the ld. Commissioner (Appeals) in his order-in-appeal has recorded the following findings:

Accordingly, the appellant unit is liable to have confirmed the genuineness of the invoice issued by the supplier. Further, in terms of various clarifications and directions issued by the Board through CBECs manual, they were also required to maintain records regarding receipt of inputs and other relevant documents. In this case, the proprietor of the appellant unit, also co-appellant in this appeal, was also Director of the supplier company and accordingly, it is beyond dispute that the appellant unit has fulfilled their obligation as such with regard to taking reasonable step to satisfy above the identity and address of the manufacturer or supplier.

I have gone through Copy of ER-1 return of January 2007 filed by the Appellant, wherein 1315638.75 Mtrs of Grey Fabrics is shown as received. I have also gone through the Copy of ER-1 return of M/s. Orange Polymers, Navapur, Maharashtra for January 2007 showing clearing of Grey Fabric 92095.06 kg valued at Rs. 4,39,64,533/- duly acknowledged by the Jurisdictional Range Officer. The appellant have further undertaken with regard to the difference in quantity shown in ER-1 of M/s. Tejus and M/s. Orange that the Grey Fabric that the quality of fabric supplied to M/s. Tejus was 14.29 mtrs per kg. On computation, as such, I do not find that such facts, though very much present before the investigating officers as well as before the Ld. Adjudicating Authority, have been totally ignored, which is against the principles of natural justice.

It can be seen from the above reproduced factual finding, the first appellate authority has called for and considered all the records that need to be gone into to come to the conclusion that whether the main respondent has correctly availed cenvat credit of the duty paid by OPL. This factual matrix has not been controverted in the grounds of appeal.

9. As regards the issue No. 3 it is on record and held by the first appellate authority that OPL has in fact filed returns with the authorities as and when manufactured and cleared grey fabrics.

10. The factual findings of the first appellate authority that the payment for transaction entered into by the main respondent clearly indicates that there was payment made to OPL, Nandurpar. A plea was also made before the adjudicating authority. It is seen from the record that first appellate authority has gone into ledger account, income tax returns, audit report and CA certificate which were produced before both the authorities below and held that there cannot any suspicion about consideration for purchase being paid by the main respondent. Relying upon the judgment of the Hon'ble Gujarat High Court 2004 (171) ELT 0160 that CA certificate uncountered has to be held in favour the main respondent herein.

11. In my considered view, the detailed findings of the first appellate authority in these appeals are correct and have not been controverted by the Revenue effectively in the grounds of Appeal.

12. In view of the foregoing facts and circumstances of these case, the impugned order is correct and legal and does not require any interference. The impugned order is upheld and the Appeals are rejected