Cce, Ludhiana vs Dee Dee Steel Casting Ltd

(Arising out of OIA No.7/CE/Appl/CHD/2006 dt.16.1.2006 passed by Commissioner of Central Excise (Appeals) Ludhiana)

CCE, Ludhiana Appellants

Vs.

Dee Dee Steel Casting Ltd. Respondent

Appearance:

Present for the Appellant: Shri A.K.Singh, AR

Present for the Respondent: Shri Mukesh Pandey, Rep.

Honble Mr.P.K.Das, Member (Judicial)

Honble Mr.P.S.Pruthi, Member (Technical)

1.

Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No

3. Whether their Lordships wish to see the fair copy of the order?

seen

4. Whether order is to be circulated to the Department Authorities?

Yes

Coram: Honble Mr. P.K.Das, Member (Judicial)

Honble Mr.P.S.Pruthi, Member(Technical)

Date of Hearing/decision: 19.01.2015

FINAL ORDER NO.50210/2015

PER: P.S.PRUTHI

This appeal is directed against the Order-in-Appeal in which the Commissioner (Appeals) set aside the demand of duty confirmed by the adjudicating authority.

2. The facts of the case are that respondents availed cenvat credit on the basis of invoices issued by the dealer. The vehicles No. mentioned in the invoice were found to be not transported vehicles such as motor cycle, scooter, moped, etc. and in some cases, registration of the vehicles were fake as these were not issued jurisdictional transport authority. The allegation was that the dealers never supplied the material to the respondent. The adjudicating authority confirmed the demand, however, the Commissioner (Appeals) set aside the Order-in-Original on the basis that the appellants have made payment for the inputs received from the dealer through accounts payee cheque and used the inputs in the manufacture of the final products.

3. Similar issue came up before this Tribunal in the case of Adhunik Steels Ltd. Vs.CCE, Chandigarh vide Final OrderNo.732-762/2009-SM (Br.) dated 14.7.2009 The Tribunal in para 4 and 5 held as under:-

4. After hearing both sides and on perusal of the records, I find that the commissioner (Appeals) on identical issue in earlier orders set aside the penalties on the basis of Newspaper reports of Tribunal and The Times of India wherein it has been reported that 500 vehicles are running in Punjab State on fake registration. In the present cases, the Commissioner (Appeal) changed his mind on the ground that the same practice is still prevailing as the appellants have not taken any remedial action to amend the said mistake. In my view, penalty cannot be set aside/upheld on the basis of News-paper report. It is seen that the Commissioner (Appeal) have not examined the evidences placed by the appellants. The Division Bench of the Tribunal in the case of Aarti Steels Ltd. & Ors. (Supra), after considering the decision in the case of Rajeev Alloys Ltd. (Supra), held as under:-

4. The Revenue relied upon the decision of the Tribunal in the case of M/s Rajeev Alloys Ltd. Vs CCE vide Final Order dated 3.9.2008 in Appeal No.2434/2006 Ltd. [reported in 2008 (89) RLT 227 (CESTAT-Del.)] The contention of the Revenue is that once it has been established that the vehicle numbers mentioned in the invoices are not of trucks or the transporter has denied the transportation of goods or the dealer has no godown than the burden is on the assessee who availed the credit to show by producing evidence that the duty paid inputs were actually received in the factory of production and used in the manufacture of dutiable goods. In these cases, as the Revenue by producing evidence of transporter and enquiries from transport office established that the vehicle numbers mentioned in the invoices are not of trucks or the transportation of goods is denied, therefore, the credit was rightly denied. In other cases revenue during investigation found that the dealers who issued the invoices had not received the inputs.

5. We find that the Tribunal in the case of M/s Rajeev Alloys (Supra) held that onus initially lies on the department to show that inputs are not received in the factory of production and credit has been wrongly taken but having established that the vehicle in question, were incapable of transporting large quantity mentioned in the invoices, the onus shifts to the assessee to prove that goods were duly received by them and used in the manufacture of excisable goods. In view of the above decision, we find that as the initial burden that goods had not been received by the appellant has been discharged by the Revenue, therefore, the onus is on the appellant to prove that the duty paid goods were actually received in the factory and used in the excisable goods. In these circumstances, the impugned orders are set aside and the matter is remanded to the adjudicating authority to decide afresh in view of the decision of the Tribunal in the case of M/s Rajeev Alloys (Supra). The appeals are disposed of by way of remand.

4. The issue in hand being identical, we remand the matter back to the adjudicating authority to decide the case afresh in the light of the above decision of the Tribunal.

(Pronounced in the court)

(P.S.PRUTHI) (P.K.DAS)

MEMBER (TECHNICAL) MEMBER(JUDICIAL)

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