1. These appeals have been filed against a common Order-in-Appeal dt. 25.04.2013 and since one of the two issues is connected with both the appellants, the appeals are taken up together for disposal. The advocate for the appellants vide his letter dt. 21.01.2018 has submitted a synopsis of written submission for both the appeals with the request to decide the matter on the basis of submissions and grounds of the appeal. Accordingly, the matter is taken up for disposal with the help of Ld. A.R.
2. Brief facts of the case are that M/s. Hindustan Unilever Ltd. (appellant No. 1) availed Cenvat credit of Rs. 1,53,023/- on the invoices issued by M/s. Chemicals Sales, Rajpura (appellant No. 2). M/s. Chemicals Sales is not a registered dealer with the Central Excise Department, but is a trader, who issued the invoices to M/s. Hindustan Unilever Ltd. The Revenue was of the view that the invoices not having been issued by a registered dealer, are not the proper documents under Rule 9 of Cenvat Credit Rules. Second issue pertains to taking of 100% Cenvat credit of Rs. 53,005/- on the capital goods by M/s. Hindustan Unilever Ltd. in first year itself claiming them as inputs whereas the Revenue is of the view that the same are the capital goods and hence the appellant No. 1 should have taken Cenvat credit to the extent of 50% of the duty paid on such capital goods. Accordingly, a show cause notice was issued on 17.02.2012. In the adjudication order dt. 03.09.2012, the entire demand of Rs. 2,06,028/- was confirmed along with penalty of Rs. 2,06,028/- under Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. Penalty of Rs. 1,53,023/- was also imposed on M/s. Chemicals Sales, Rajpura. Both the appellants went in appeal before the Commiss
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ioner (Appeals). In his order dt. 25.04.2013, Ld. Commissioner (Appeals) rejected both the appeals. Aggrieved from the same, the appellants have filed these appeals.
3.1 On the first issue, the appellant No. 1 has submitted that a perusal of the invoices issued by the manufacturer M/s. Siel Chemical Complex clearly show that the disputed goods were directly sent to appellant No. 1. Further, the invoices issued by M/s. Chemical Sales to appellant No. 1 also note the details of the invoices issued by M/s. Siel Chemical Complex, which clearly shows that the disputed duty paid goods covered by invoices issued by M/s. Chemical Sales and M/s. Siel Chemical Complex were received directly by appellant No. 1. It is argued that both the invoices read together clearly show that Cenvat credit was correctly taken as all the particulars required in an invoice listed in rule 9(a)(i) are available on record. It is also submitted that Cenvat credit cannot be denied if the document do not contain all the particulars but contain the details of duty payable, description of goods, assessable value, the Central Excise Registration Number of the person issuing the invoice. In this regard, appellants have pleaded for a cumulative reading of the invoices issued by Chemical Sales and Siel Chemical Complex available at pages 61-74 of the Appeal No. E/58730/2013-EX[SM]. On limitation and penalty, the submission is that the details of Cenvat credit taken and utilized were given in the periodical ER-1 returns and the details of invoices, against which Cenvat credit was taken, are recorded in the statutory accounts maintained for Cenvat credit. Hence, there is no evidence of mala fide intention to evade payment of duty.
3.2 The appellant No. 2 has referred to the Stay Order No. SO/59142-59143/2013 dt. 23.08.2013 to argue that penalty cannot be imposed on them as it was for M/s. Hindustan Unilever, not to take irregular Cenvat credit as they are unregistered dealer. It is also argued that there is no evidence to suggest that appellant No. 2 abetted with the buyer i.e. M/s. Hindustan Unilever Ltd. for facilitators availment ineligible Cenvat credit. It is also contended that they are only a trader and hence not liable to take registration to Central Excise authorities. They had issued VAT Commercial invoice and not the invoice of Cenvat credit under Cenvat Credit Rules and they had not collected any amount representing central excise duty. Hence, they had not violated any provisions leading to imposition to penalty under Rule 26(2)(ii).
3.3 On the second issue, the contention is that there is no allegation that the items procured are classifiable as capital goods being spare parts of the machinery used to manufacture of excisable goods. Contention is that as they had reversed the Cenvat credit on 04.03.2011, the credit taken in advance may attract interest liability but the demand was not sustainable.
4. Ld. A.R. submits that the appellant No. 2 have to show that they have not issued central excise invoice and he drew attention to pages 63-74 of the appeal filed by the appellant No. 2 to contend that they had fraudulently acted as registered dealer during impugned period and also collected central excise duty. He also drew attention to the finding of the adjudicating authority in para 10, 11 and 12 of the adjudication order to argue that the appellant No. 2 was complicit in fraudulent availment of inadmissible Cenvat credit by the appellant No. 1. He argued that the key issue is whether Chemical Sales, Rajpura, who is not a first or second stage dealer can issue Cenvatable invoices. The question of whether the invoice contains all the details comes after satisfying the condition that the invoice is to be issued by a manufacturer, an importer or by a first or second stage dealer. He also invited attention to findings in para 10 to argue that the appellant No. 1 had deliberately tried to mislead the authorities and acted in mala fide manner.
5. Heard the Ld. A.R. and perused the record including the synopsis of the written submissions filed by the appellant No. 1 and appellant No. 2.
6. On the issue of availment of inadmissible credit of Rs. 1,53,023/- by M/s. Hindustan Unilever Ltd. on the basis of invoices issued by M/s. Chemicals Sales, Rajpura, I find that there is no dispute that M/s. Chemicals Sales was not registered with the Central Excise Department as first or second stage dealer during the impugned period. The law is clear under Rule 9 of Cenvat Credit Rules, 2004 that the invoice should be issued by a manufacturer, an importer or a first/second stage dealer. If the invoice was not issued by any of the above categories, the same cannot be considered as a valid document in eyes of law and the Cenvat credit taken on the basis of such a document is irregular and inadmissible. The contention of the appellant No. 1 is that disputed goods were directly sent to appellant No. 1 by M/s. Siel Chemical Complex and these were duty paid goods and that both the invoices should be read together clearly show that Cenvat credit was correctly taken as all the particulars required in an invoice listed in rule 9(a)(i) are available on record. I find that the construction proposed by appellant No. 1 to read both the invoices together is not permissible in law and the fact remains that they had taken Cenvat credit on the basis of invoices issued by appellant No. 2, who was not a registered dealer under Central Excise during the impugned period and could not have issued Cenvatable invoices. If the department starts accepting the invoices issued by a trader, who is not a registered dealer, it will create chaos in the Cenvat credit system and there will be flagrant misuse of the said scheme, which is a facility to present cascading effect of taxes. I also find that the adjudicating authority has correctly brought out the attempt made by appellant No. 1 and No. 2 to mislead the authorities in para 10 & 11 of the adjudication in order to avail fraudulent credit, which are reproduced below:
10. The second issue before me is as to whether the party No. 1 has correctly availed Cenvat credit of Rs. 153023 of the duty paid on Caustic Soda Liquid, on the strength of invoices issued by party No. 2 i.e. M/s. Chemicals Sales, Rajpura. The Revenue alleged that the party No. 2 was a first stage dealer but was not registered with the department during the material period and as such party No. 1 was not entitled to avail of Cenvat credit on the basis of invoices issued by the party No. 2. On the other hand, the party No. 1 in its defence has submitted that although the party No. 2 was not registered during the period in dispute but the party No. 2 had purchased the said goods from M/s. Siel Chemical Complex who were the manufacture of the said inputs. The party No. 1 also submitted a table to establish this linkage (refer para 10.4). The party No. 1 has further submitted that duty payment character, receipt of impugned goods and utilization thereof in the manufacture of dutiable final products is not in dispute and hence credit is not deniable.
In this regard, I observe from the copies of invoices issued by the party No. 2 and the invoices issued by M/s. Siel Chemical Complex, Rajpura (produced by the party No. 1) that the party No. 2 had issued six invoices bearing Nos. 27 dated 21.09.2010, 34 dated 19.11.2010, 39 dated 24.12.2010, 43 dated 6.1.2011, 46 dated 30.1.2011 and 47 dated 4.2.2011 (on the basis of which the party No. 1 had availed Cenvat credit amounting to Rs. 153023/-). Perusal of these invoices indicated that these invoices have been issued by party No. 2 to party No. 1 and bear uncanny resemblance to the invoices issued by registered first/second stage dealer. It is also seen that these invoices have been duly stamped by party No. 1 to indicate that credit has been availed by them on the strength of these invoices (no such stamp is seen on the invoices issued by M/s. Siel Chemical Complex, Rajpura). Further perusal of the supporting invoices issued by M/s. Siel Chemical Complex, Rajpura indicates Consignee as well as Buyer as CHEMICALS SALES & SERVICES, 145, SULTANPUR, MEHRAULI GURGAON ROAD, NEW DELHI and not CHEMICAL SALES, BO. DAMNEHRI, RAJPURA. These invoices also clearly mention that the ECC Code of M/s. Chemicals Sales & Service, 145, Sultanpur, Mehrauli Gurgaon Road, New Delhi as AAEFC0142KXD001, TIN No. as 07150273978 and Sales Tax No. as LC/101/07150273978/03-04 whereas M/s. Chemicals Sales, Rajpura has TIN No. as 03302074233. Thus the party No. 1 has tried to mislead the adjudication by stating that M/s. Siel Chemical Complex had sold the goods to the party No. 2 who in turn had sold these goods to them (para 10.3 of party No. 1's reply).
11. Another interesting point is the difference in the number of days between issue of the so called supporting invoice of M/s. Siel Chemical Complex, Rajpura and the invoice issued by party No. 2 and that too when the Truck No./Tanker No. is same and the delivery is local.
7. The appellants have relied on the following case laws to argue that non-registration was a procedural lapse:-
i) Mangalore Chemicals & Fertilizers : 1991(55) ELT 437 (SC)
ii) Wood Papers Ltd. : 1990 (47) ELT 500 (SC)
iii) Indian Farmers Fertilizers - 1995 (75) ELT 218 (Guj.)
iv) Breach Candy Hospital : 2000 (118) ELT 271 (Tri.-LB)
I find that all the above case laws are in the context of exemption notifications and not in the context of the Cenvat Credit Rules. Besides, even for exemption notifications, the general principle is that at the eligibility stage, the notification is to be interpreted strictly and once eligibility is established, liberal interpretation should be given. I find that the facts and context of the present case are completely different from the above cited cases. Hence, they are not applicable to the facts of this case. Besides, the requirement that an invoice should be issued by a manufacturer or importer or a registered dealer is a substantive condition, which cannot be relaxed as it would be prone to immense misuse. Registration obtained after the detection of the case, would not convert a substantive requirement to a procedural requirement. Hence the above case laws do not come to rescue of the appellants.
8. On the issue of limitation and penalty on the appellant No. 1, the appellants have argued that they had declared the availment of Cenvat credit in the ER-1 returns and there was no suppression of the facts or any misstatement. In this regard, they have relied on the various judgments in their pleadings. The appellants have however not elaborated as to how each of the judgments is applicable to the facts of their case. However, I find that appellants while declaring availment of Cenvat credit in the ER-1 returns have misstated the facts because the invoices, on which they had availed Cenvat credit, were not issued by a manufacturer/importer/registered dealer thereby resulting in availment of irregular and fraudulent credit. As a result, they had mis-declared the availment of Cenvat credit. None of the judgments relied on by appellants has similar facts wherein the basic document itself was not a valid document on account of non-issuance by a manufacturer/importer/registered dealer. Hence, the extended period has been rightly been invoked and penalty on appellant No. 1 has been correctly imposed.
9. As for the penalty on appellant No. 2, it is evident from the invoices issued by M/s. Chemical Sales that without them being a registered dealer, they were collecting duty of excise and hence their contention that the mention of first and second dealer on top of the invoices was because of general software is not tenable. In this regard, I find that para 11 of the order-in-appeal correctly brings out the reasoning for imposition of penalty under Rule 26(2)(ii), which is reproduced below:
11. Coming to the question of imposing of penalty on the appellant No. 2. They have claimed that they had issued the invoices in the capacity of the trader and the invoices issued were commercial VAT invoices. I have seen the invoices and find that but for the registration No. which is not mentioned, the invoices have the contents identical to an invoice prescribed under Rule 11 of the Rules. The appellants have claimed that their software generates the invoices which contained all the particulars. I find that the invoices are containing all the particulars required for invoice issued under Central Excise law and includes the particulars of the manufacturer. Though the appellant No. 2 were clearly aware that they were not the buyers/consignee's of the goods, still they issued invoices in the capacity of the dealer. I also find that the invoices bore the markings First/Second Stage Dealer/Consignment Agent/Importer and they had struck down the Second Stage Dealer/Consignment Agent/Importer and left out First Stage Dealer. Even if their version is considered though no accepted, they ought to have struck out even First Stage Dealer also. Thus, the bona fide of the appellant No. 2 is not established and contrary to this, I find that they had purposely mentioned all the particulars to facilitate the appellant No. 1 to avail inadmissible credit. Thus, they are liable to penalty under Rule 26(2)(ii) of the Rules. The appellants have also contested that their issue was not covered by any of the provisions of Rule 26(1) or 26(2) of the Rules. For reference, Rule 26(2)(ii) is reproduced below:
(ii) any other document or abets in making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the Rules made there under like claiming of CENVAT Credit under the Cenvat Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater.
I observe that their offence is of the nature mentioned in Rule 26(2)(ii) of the Rules and hence penalty has righty been imposed on the appellants No. 2 under Rule 26 of the Rules.
In view of the above, on the first issue pertaining to irregular credit of Rs. 1,53,023/-, there is no infirmity in the order of Commissioner (Appeals) and the same is upheld. Penalties on both appellants are also upheld.
10. On the second issue pertaining to Cenvat credit on capital goods, I find that the Commissioner (Appeals) has given the following finding:
7.1 As regards a above, if find that the appellants are not contesting the issue. Their only contention is that the since the credit held inadmissible to them in the first year, was available to them in the succeeding years. I observe that the issue is not covered by the show cause notice. However, the appellants No. 1 are at liberty to avail admissible credit and needs no approval.
After giving this finding and without elaborating further, he has rejected the appeal. Clearly, the order of Commissioner (Appeals) on this issue shows partial application of mind and is seemingly a perverse order.
Hence, the matter needs to be examined again by Commissioner (Appeals) so as to give clear findings on this issue and to adjudicate the matter afresh. In view of the foregoing, the order of Commissioner (Appeals), in so far as it relates to the irregular credit of Rs. 53,005/-, is set aside and the matter is remanded back to Commissioner (Appeals) to pass a fresh order after giving fair opportunity to the appellants to defend their case.
11. In the result,
(i) the order of Commissioner (Appeals) pertaining to irregular Cenvat credit of Rs. 1,53,023/- on inputs is upheld and the demand of this amount along with interest is confirmed and penalty on both the appellants is upheld.
(ii) the order of Commissioner (Appeals) relating to Cenvat credit of Rs. 53005/- on capital goods, the matter is remanded back to Commissioner (Appeals) for fresh adjudication.
12. The appeals are disposed off in the above terms