Shri Shivkumar Kaluram Heda vs C.C.E. & S.T.-Vadodara-I

Appeal No.E/694-696,923-924,786-787/2009; E/110,190-191/2011; E/MA(EXTN)/16749,16786/2014, [Arising out of OIA-82-88/2009-AHD-II-CE/ID/COMMR-A-/AHD, 27/02/2009, OIA-COMMR-A-/304-308/VDR-I/2010, 29/10/2010, passed by Commissioner of Central Excise & Customs (Appeals) Ahmedabad-II, Vadodara-I]

1. Shri Shivkumar Kaluram Heda, 2. Shri Kaluram Ramdayal Heda, 3. Shri Parmjit Singh Kakar, 4. M/s Vipul Copper Pvt.Ltd 5. Shri Natubhai Patel 6. Shri Navratan Lal Sharma, 7. M/s Atlanta Electricals Pvt.Ltd. 8. Shri Harshadbhai A. Mehta Appellants 9. C.C.E. & S.T.-Vadodara-i

Vs 1. C.C.E. & S.T.-Vadodara-i 2. M/s Atlanta Electricals Pvt.Ltd. Respondents

Represented by:

For Assessee: Shri S.J. Vyas, Shri P.V. Sheth, Shri Rahul Gajera  Advocates.

For Revenue: Shri K. Sivakumar, Authorised Representative Shri Alok Srivastava, Authorised Representative

For approval and signature:

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

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

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

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

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)

Date of Hearing/Decision:20.02.2015

Order No. A/10167-10176/2015 dated 20.02.2015

Per : P.K. Das

1. A common issue is involved in these appeals and therefore, all are taken up together for disposal.

2. The relevant facts of the case, in brief, are that M/s Vipul Copper Pvt.Ltd and M/s Atlanta Electricals Pvt.Ltd, the appellants, are engaged in the manufacture of Copper Rods/Wires, Power Distribution Transformers respectively. The Central Excise officers during the investigation found that both the appellant companies availed Cenvat Credit on the basis of Central Excise invoices without receiving the material. Show Cause Notices were issued, proposing denial of CENVAT Credit to both the companies along with interest and the penalty and also the impose penalties on the registered dealers and transporters and the Directors of the appellant companies. The Adjudicating Authority confirmed the demand of duty along with interest and imposed penalties against the appellant commissioners, their Directors, registered dealers.. By Order-in-Appeal No.82 to 88/288/2009(AHD-II)/CE/ID/Commr(A)/Ahd, dt.27.02.2009, the Commissioner (Appeals) rejected the appeals filed by the appellants against which Appeal No. E/694-696/2009, E/923-924/2009 and E/786-787/2009 were filed by the appellants. By Order-in-Appeal No.Commr(A)304-308/VDR-I/2010, dt.20.10.2010, the Commissioner (Appeals) upheld the Adjudication order against the demand of duty and penalties in respect of M/s Atlanta Electricals Pvt.Ltd. and its Director Shri Harshadbhai A. Mehta and set aside the penalties against the other co-notices. The assesses company and its Directors filed Appeal, No.E/190-191/2011. Revenue also filed appeal No.E/110/2011 against the assessee M/s Atlanta Electricals Pvt.Ltd.

3. Shri S.J. Vyas, ld.Advocate appearing on behalf of M/s Vipul Copper Pvt.Ltd and Shri Nathubhai, Director of the Company submits that the impugned order was passed in gross violation of principles of natural justice. He submits that the entire case was made out on the basis of statements of various persons and records of the transporters. It has been alleged that the appellants had availed Cenvat credit without receiving the goods which is contrary to the evidences as they placed before the lower authorities such as, receipt of the materials, payments by cheques etc. He seriously challenged the impugned order on the ground that both the authorities below failed to provide the relied upon documents to the appellant. In this context, the ld.Advocate drew the attention of the Bench to the relevant portion of the Adjudication Order and the order of the Commissioner (Appeals). He further submits that on the basis of the same investigation, against other manufacturers of the Tribunal allowed the appeal in the case of Monarch Metals P. Ltd. Vs CCE Ahmedabad  2010 (261) ELT 508 (Tri-Ahmd.). In that case, Revenue filed appeal against one of the assessees before Honble Gujarat High Court, which was dismissed, in the case of Commissioner Vs Dhanlaxmi Tubes & Metal Industries - 2014 (34) STR 155 (Guj.).

4. Shri P.V. Seth, ld.Advocate appearing in Appeal No.E/694,695/ 2009 (registered dealers) and Appeal No.923, 924/2009 (Transporters) adopts the submissions and arguments of Shri S.J. Vyas, Advocate. Nobody appeared on behalf of Shri Paramjitsingh Thakkar (Transporter).

5. Shri Rahul Gajera, ld.Advocate is appearing on behalf of M/s Atlanta Electricals Pvt.Ltd. and its Director Shri Harshadbhai A. Mehta. He submits that their case relates to demand of Rs.92,798.00 and squarely covered by the decision of the Tribunal in the case of Monarch Metals Pvt. Ltd (supra) upheld by Honble Gujarat High Court. He further submit that the Commissioner (Appeals) upheld the demand of duty along with interest and penalty against M/s Atlanta Electricals Pvt.Ltd. and therefore, the appeal filed by the Revenue against them is not maintainable and liable to be dismissed. He further submits that the main allegation is against the transporter and the registered dealer. But the Commissioner (Appeals) set aside the penalty against transporter and registered dealers, against which Revenue has not filed the appeal and therefore their appeal should be allowed on this ground alone.

6. On the other hand, learned Authorised Representative appearing for the Revenue, in respect of the appeal filed by M/s Vipul Copper Pvt.Ltd & others, submits that as revealed from the order of the Commissioner (Appeals), the documents were supplied with the show cause notice. He further submits that despite the documents supplied with the show cause notice, the Adjudicating authority directed them to collect the documents again from DGCEI office. So, the stand taken by the appellant is contrary to the facts and records of the case. He places case laws on the identical issue in favour of Revenue.

7. Shri K. Sivakumar, learned Authorised Representative appearing on behalf of the Revenue in the appeals filed by M/s Atlanta Electricals Pvt.Ltd. and its Director, as well as the appeal filed by the Revenue against M/s Atlanta Electricals Pvt.Ltd. He submits that the Revenues appeal is actually against the other co-notices against which, the Commissioner (Appeals) set aside the penalties. He submits that the name of the respondent was erroneously mentioned as M/s Atlanta Electricals Pvt.Ltd. in the Revenues appeal, which is a mere typographical mistake. He submits that the penalties against the registered dealers and the purchasers and the transporters should not be set aside.

8. After hearing both the sides and on perusal of the records, I find that the main grievance of the appellants in the case of M/s Vipul Copper Pvt.Ltd and others arising out of the Order-in-Appeal dated 18.02.2009 that both the authorities below fialed to appreciate that the Department had not provided the relied upon documents. On perusal of the Adjudication order, I find that the Adjudicating authority observed that appellants were directed to collect the copies of the relied upon documents from DGCEI office. In this context, learned Advocate for the appellant submits that they have made several correspondence with DGCEI even that the documents were not supplied to them. The Commissioner (Appeals) observed that the Annexure D of the show cause notice clearly shows that the copies of the relied upon documents and statements were provided to them. I find that the Adjudicating authority directed the appellants to collect the documents from DGCEI office, who has not supplied the documents to them, as contended by the respondents. But, the Commissioner (Appeals) observed that the documents were supplied with the show cause notice, which is totally mis-conceived, inconsistent and contradicting. The ld.Advocate Shri S.J. Vyas fairly submit that they could not file the reply to the show cause notice as the documents were not supplied to them. I agree with the submissions of the learned Advocate that if the Department fails to supply the relied upon documents, it is difficult to file the reply to the show cause notice and therefore, the impugned orders are not sustainable on this ground alone.

9. Regarding the appeals filed by M/s Atlanta Electricals Pvt.Ltd. and its Director, I find that these appeals are related to appeals filed by M/s Vipul Copper Pvt.Ltd. I agree with the submission of the learned Advocate that the appeal of M/s Atlanta Electricals Pvt.Ltd. was rejected by Commissioner (Appeals) and therefore the appeal filed by the Revenue against them is not maintainable. Further, the submissions of the Learned Authorised Representative that the respondents name was wrongly mentioned instead of other co-notices, has no force as no application for amendment of cause title was filed by the Revenue.

10. In view of the above discussions, the impugned orders to the extent of the appeals filed by the appellants are set aside and the matters are remanded to the Adjudicating authority to decide afresh after supplying the relied upon documents to the appellants, to file the reply to the show cause notice. Needless to say that the Adjudicating authority shall give proper opportunity of hearing before decision. He would also consider the decision placed by the learned Advocates before the Tribunal on the identical issue as contended by the appellants . All the appeals filled by the appellants are allowed by way of remand. The appeal filed by the Revenue is dismissed.

11. The applications filed by the applicants for extension of the period of the stay order are dismissed as infructuous.

(Dictated & Pronounced in Court)

(P.K. Das) Member (Judicial)

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