2010 (5) TMI 430 - AT - Central Excise

Cenavat credit - fake invoices - respondents sought to avail Cenvat credit Held that manufacturer should obtained summon to the dealer to produce the necessary evidence - burden in that regard was squarely upon the manufacturer demand under SCN confirmed

Summary

Issues:
Appeal against dropping of demand under Section 11A of the Central Excise Act based on alleged fake invoices for Modvat credit.

Analysis:
1. Background and Allegations: The appeal arose from an order passed by the Commissioner, Central Excise, Chandigarh, dropping a demand of Rs. 85,84,952 against the respondents for allegedly availing Modvat credit using fake invoices issued by M/s. Karan & Co. without receiving the raw materials described in those invoices. The proceedings were initiated based on a show cause notice dated 9th July, 2003.

2. Contentions of the Department: The department contended that statutory documents and investigations revealed discrepancies, indicating that the goods described in the invoices were never received by the respondents. The department argued that the respondents failed to account for the goods for which credit was taken, as evidenced by discrepancies in statutory records and physical verification of stock. The department relied on a Tribunal decision emphasizing the obligation of manufacturers to account for goods for which credit is availed.

3. Presumption of Non-Receipt: The impugned order and records confirmed that no vehicles described in the invoices crossed the entry point, leading to a presumption that the goods were not received unless rebutted with evidence. The absence of entries in statutory registers favored the department's case, and no evidence was produced by the respondents to counter this presumption.

4. Corroboration and Incorrect Information: Correspondence between tax authorities and the respondents revealed inconsistencies in the number of forms submitted and vehicles crossing the barrier, indicating incorrect information provided by the respondents. The respondents failed to rebut the presumption of fake invoices and non-receipt of goods.

5. Onus of Proof and Decision: The Tribunal held that the burden was on the manufacturer to prove the receipt of goods based on the invoices. The impugned order was set aside as mere assumptions without supporting evidence. The demand under the show cause notice was confirmed, emphasizing the failure of the respondents to discharge their obligation to establish the receipt of goods as per the invoices.

In conclusion, the Tribunal found in favor of the department, setting aside the impugned order and confirming the demand raised against the respondents for availing Modvat credit based on alleged fake invoices.