2010 (6) TMI 465 - AT - Central Excise

Penalty - Cenvat credit - First stage dealers - The appellants had neither purchased the goods from the manufacturer M/s. Swastika Pipe Ltd. nor from the their consignment agent - rather they had purchased the goods from M/s. Rameshwar Das Devi Dayal (P) Ltd., who was only an indenting agent and not the consignment agent of the manufacturer , that the appellants are not covered by the definition of first stage dealer as rightly held by the adjudicating authority - The accountant, of the appellant clearly shows that the appellant were aware that in respect of the goods purchased from M/s. Swastika Pipes Ltd., they are not the first stage dealer but they still issued invoices by posing themselves as first stage dealer. Held that the penalties have rightly been imposed on the appellant - However, in view of nature of contravention and the fact that the cenvat credit has been allowed by the Commissioner (Appeals) to the end users, the penalties on the appellant are reduced to 25% of cenvat credit demand.

Summary

Issues:
1. Determination of whether the appellants qualify as first stage dealers under the Cenvat Credit Rules, 2004.
2. Validity of penalties imposed on the appellants for alleged non-compliance with invoicing regulations and misleading representation as first stage dealers.

Analysis:

Issue 1: Determination of first stage dealer status
The case involved the appellants, registered as first stage dealers of CR sheets, who sold materials to subsequent dealers. The Department alleged that the appellants did not purchase directly from the manufacturer but through an intermediary, M/s. Rameshwar Das Devi Dayal (P) Ltd. The Commissioner (Appeals) found that the appellants knowingly misrepresented themselves as first stage dealers to enable subsequent dealers to pass on Cenvat credit. The Tribunal upheld this finding, emphasizing that the appellants did not purchase directly from the manufacturer, a requirement for first stage dealer status. The Tribunal differentiated this case from precedents where consignment agents were involved, highlighting the appellants' awareness of their status as second stage dealers. Consequently, the appellants were correctly classified as not first stage dealers.

Issue 2: Validity of penalties
The penalties imposed on the appellants were challenged on grounds of lack of mala fide intent and disproportionate penalty amounts. The Department argued that the appellants knowingly issued invoices as first stage dealers despite being aware of their actual status. The Tribunal agreed with the Department, acknowledging the appellants' deliberate misrepresentation. However, considering the nature of the violation and the allowance of Cenvat credit to end users, the penalties were reduced to 25% of the Cenvat credit demand. The Tribunal upheld the penalties but adjusted the amount based on the circumstances.

In conclusion, the Tribunal affirmed the classification of the appellants as not first stage dealers due to their indirect procurement and upheld the penalties, albeit reducing the amount, for the deliberate misrepresentation in issuing invoices.