M/S. Mahindra Engineers vs C.C.E. Ludhiana

[Arising out of Order-in-Appeal No.59/Appl/Cus (D)camp/chd/2013 dated 30.04.2013 by the Commissioner of Customs & Central Excise (Appeals), New Delhi].

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Mahindra Engineers .Appellants

Vs.

C.C.E. Ludhiana .Respondent

Appearance:

Shri Naveen Bindal, Advocate for the Appellants

Shri A.K. Dhawan, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 19.01.2015

FINAL ORDER NO.50201/2015-EX (SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order wherein Cenvat Credit on inputs have been denied on the premises that appellant has taken Cenvat Credit on the basis of invoices without receiving the goods in their factory.

2. Facts of the case are that the investigation was conducted against the supplier of the goods Shri Sachin Aggarwanshi for the goods supplied by him to these parties and as the supplier was not available and did not produced any document before the authorities, therefore, Show cause notice was issued to the appellant to deny Cenvat Credit on the invoices issued by Shri Sachin Aggarwanshi on the premise that as appellant has not received physically the goods but received only the invoices. Both the lower authorities confirmed the demand against the appellant along with interest and penalties were also imposed. Aggrieved from the said order appellant is before me.

3. Ld. Counsel for the appellant submits that no statement of the supplier of the goods have been recorded in appellants case nor any corroborative have been produced by the Revenue to deny Cenvat Credit. No investigation was conducted in the factory of the appellant itself to find out whether goods have been received by the appellant or not. No statement of any transporter etc. has been recorded. In these circumstances, Cenvat Credit cannot be denied without any investigation as held by Honble Punjab and Haryana High Court in the case of M/s. Talson Mills Store, Jalandhar Vs. C.C.E. Ludhiana, Central Excise appeal no.49/2013 vide order dated 27.08.2013. Therefore, impugned order is to be set aside.

4. On the other hand Ld. AR submits that in this case supplier was not traceable and he did not produce any record before the lower authorities. He made the statement that he issued the invoices but not supplied the goods. Therefore, the conclusion of the lower authorities has been correctly drawn that appellant has not received the goods and taken the Cenvat Credit on the strength of invoices only.

5. Heard the parties. Considered the submissions.

6. On perusal of the records I find that no statement of the supplier with regard to the appellant have been recorded to say that supplier has not supplied goods to the appellant but supplied only invoices. Further no other investigation has been conducted with regard to the appellant by physical taking the stock etc., recording the statement of the supplier or the appellant themselves. In these circumstances, relying on the decision of the Honble High Court of Punjab and Haryana in the case of Talson Mills Store I hold that demand is not sustainable as the High court has found that revenue is required to hold an independent enquiry against the appellant and only thereafter could an order be passed.

7. As no enquiry has been conducted against the appellant, therefore impugned order deserves no merits and hence it is set aside. Appeal is allowed with consequential relief if any.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

2

E/59194/2013-EX(SM)