M/S.Dashmesh Castings P. Ltd vs C.C.E., Chandigarh

(Arising out of OIO No.75/CE/2004 dt.12.5.2005 passed by CCE, Chandigarh)

M/s.Dashmesh Castings P. Ltd. Appellants

Vs.

C.C.E., Chandigarh Respondent

Appearance:

Appellant: None

Respondent: Shri Y.P.Sharma, AR

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: 20.01.2015

FINAL ORDER NO.50980/2015

PER: P.K.DAS

After hearing both sides and on perusal of the records, we find that the Appellants are engaged in the manufacture of Iron & Steel products. The Adjudicating authority disallowed CENVAT Credit along with interest and imposed penalty on the ground that the Appellant availed CENVAT Credit fraudulently on the strength of Cenvatable invoices without actual receiving the goods. The Revenue proceeded on the basis of statements of various persons along with other materials.

2. We find that in an identical issue, the Tribunal in the case of Tata Steels Ltd Vs CCE Chandigarh vide Final Order No.763-832/2009-SM(Br.), dt.15.07.2009, following the decision of the Tribunal in the case of M/s Aarti Steels Ltd & Others Vs CCE Ludhiana & Others  2008 (89) RLT 235 (CESTAT-Del), remanded the matter with certain direction. Relevant portion of the said decision is reproduced below:-

4.?After hearing both sides and on perusal of the records, it is revealed from impugned orders that the Commissioner (Appeals) on identical issue in earlier orders, set aside the penalties and duty on the basis of Newspaper reports of Tribune 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 (Appeals) changed his mind on the ground that the same practice is still prevailing as the appellants/assessee have not taken any remedial action to amend the said mistake. In my view, demand of duty/penalty cannot be set aside/upheld on the basis of News-papers reports. It is seen that the Commissioner (Appeals) 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 Ranjeev Alloys Ltd. (Supra), held as under :-

4.?The Revenue relied upon the decision of the Tribunal in the case of M/s. Ranjeev Alloys Ltd. v. CCE vide Final Order dated 3-9-2008 in Appeal No. 2434/2006 [reported in 2009 (236) E.L.T. 124 (Tri.) = 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. Ranjeev 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. Ranjeev Alloys (Supra). The appeals are disposed of by way of remand.

3. In view of above discussion, we set aside the impugned order and the matter is remanded to the Adjudicating authority to decide afresh in the light of the above decision of the Tribunal in the case of Aarti Steels Ltd. (supra).

4. The appeal is allowed by way of remand. Needless to say that the Adjudicating authority shall give proper opportunity of hearing to the Appellant before decision.

(Pronounced in the Court)

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

MEMBER (TECHNICAL) MEMBER(JUDICIAL)

mk

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