2012 (1) TMI 119 - AT - Central Excise

Denial of CENVAT Credit - Credit taken on inputs of different types of M.S. scraps and sponge iron from April 2001 to March 2003 without bringing the inputs to the factory - Held that - Undisputedly the case is built on the premise that the respondent could not discharge the onus as per sub-rule (4) of Rule 7 to show that the inputs were seized in the factory - Cenvat credit is available when the inputs are used for the manufacture of such products and that the manufacturer of final product shall maintain proper records. The burden of proof regarding the admissibility of Cenvat credit shall lie on the manufacturer taking such credit - It is against the settled principle that in the matter of adjudication the power cannot be delegated to subordinate officers and the adjudicating authority should himself give his findings in the case to be adjudicated - Further deciding the case by relying upon on conclusion arrived at by Supdt. Anti-evasion amounts to non application of mind. In these circumstances the ld. Commissioner s order is set aside and the case is remanded to the ld. Commissioner for deciding the matter afresh - Decided in favour of Revenue.

Summary

Issues:
Revenue appeal against dropping show cause cum demand notices. Burden of proof on Cenvat credit usage. Delegation of power to subordinate officers. Reliance on investigation by Supdt. of Anti Evasion. Proper maintenance of records for Cenvat credit.

Analysis:

The appeal before the Appellate Tribunal CESTAT Kolkata involved the Revenue contesting the dropping of four show cause cum demand notices against the respondent. The issue revolved around the Cenvat credit availed by the respondent for inputs without proving their usage in manufacturing. The Revenue argued that the burden of proof lay with the respondent to demonstrate the inputs were brought into the factory as per Cenvat credit rules. The geographical distance between the supplier's location and the respondent's factory was highlighted to question the feasibility of transporting inputs over such a distance. Anomalies in records and statements from truckers were presented to challenge the respondent's claims.

The Department's representative emphasized the importance of maintaining proper records for Cenvat credit and argued that the respondent failed to provide sufficient evidence of input utilization. Legal precedents were cited to support the Department's position that the onus was on the manufacturer to substantiate Cenvat credit claims. The respondent, through their consultant, countered by citing Rule 7 of Cenvat Credit Rules, 2002, which mandates record-keeping without specifying the need for documentary evidence. The respondent's contention included the occasional use of a transit godown for partial consignments, which they argued was not a regular practice.

The Tribunal scrutinized the case and found that the adjudicating authority had delegated the inquiry to a subordinate officer, which was deemed inappropriate. Relying on the investigation conducted by the Supdt. of Anti Evasion without issuing a corrigendum to the show cause notice was considered a lapse in applying proper procedure. Consequently, the Tribunal set aside the Commissioner's order and remanded the case for fresh adjudication. Both parties were granted the opportunity to present additional documents, and all issues were left open for reconsideration. The Tribunal stressed the necessity of a fair hearing for both sides in the renewed proceedings. The appeal was disposed of through remand, and the cross objection was also addressed accordingly.