2014 (6) TMI 857 - AT - Central Excise

Denial of rebate claim - recovery of erroneously sanctioned rebate - contradictory statement of transporters - Cross examination opportunity not given - Held that - Government of India has issued Notification No. 21/ 2004-C.E. (N.T.) dated 06.09.2004 for grant of rebate of central excise duty paid on materials used in the manufacture of export goods. The essential requirements of the notification for claiming rebate are that the duty paid materials, purchased directly from the material manufacturers or from registered dealers, are actually received by the manufacturer of export goods; that the same are actually used in the manufacture of export goods; and that the export goods so manufactured are actually exported. After the Revenue started its investigations regarding alleged fraudulent rebate claims by the main appellant, the Maharashtra Value Added Tax authorities obtained copies of various documents from the Central Excise Department on the issue and commenced independent investigations from VAT angle. During this investigation the statements of the transporters were recorded by Maharashtra Sales Tax Authorities in their own language Hindi , which indicate that the inputs in fact have been transported and delivered to the factory of main appellant or to its two job workers at Vasai, which contradict the statements recorded by DGCEI in English. The two set of statements of the same persons on the same issue of transportation of inputs by two investigating authorities are contradictory to each other. The report of MVAT authorities also revealed that the two job workers of the main appellant have very large manufacturing capacity & have huge machinery for manufacture, and had incurred huge electricity expenditure. We note that the copy of the said MVAT Report was not properly appreciated by the adjudicating authority. We also find that the adjudicating authority has nowhere tried to verify from the records of the Deputy/ Assistant Commissioner having jurisdiction over the factory of the main appellant to know whether any additional intimations have been filed mentioning the names and addresses of more job workers. Order passed by the adjudicating authority is set-aside and matter is remanded back to the adjudicating authority for deciding the same afresh after affording the appellants an opportunity to explain their case and after allowing the appellants cross-examination of those persons whose statements are relied upon - Decided in favour of assessee.

Summary

Issues Involved:
1. Alleged fraudulent rebate claims by M/s H. K. Impex Private Limited.
2. Receipt and use of duty-paid inputs in the manufacture of export goods.
3. Contradictory statements by transporters and input suppliers.
4. Adequacy of machinery and electricity consumption for manufacturing.
5. Denial of cross-examination of witnesses.
6. Non-appearance of appellants for cross-examination.
7. Relevance of Maharashtra Value Added Tax (MVAT) report.

Issue-wise Detailed Analysis:

1. Alleged Fraudulent Rebate Claims:
The main appellant, M/s H. K. Impex Private Limited (HKI-Guj), was accused of claiming rebates fraudulently by not using the duty-paid raw materials in the manufacture of exported stainless steel utensils. The adjudicating authority confirmed a demand of Rs. 1,22,82,044/- along with interest and rejected rebate claims amounting to Rs. 2,20,91,410/-.

2. Receipt and Use of Duty-Paid Inputs:
The appellants argued that the duty-paid inputs were received and used in manufacturing, supported by verification reports from jurisdictional officers and statements from transporters and input suppliers. However, the Revenue alleged that the raw materials were never brought to the factory or job workers' premises and were instead procured from other manufacturers in Delhi.

3. Contradictory Statements by Transporters and Input Suppliers:
The appellants presented statements from transporters and input suppliers recorded by the Maharashtra Sales Tax Authorities, confirming the transportation and delivery of inputs to their factory and job workers. These statements contradicted those recorded by DGCEI, which alleged that inputs were not delivered to the factory but to Maharashtra.

4. Adequacy of Machinery and Electricity Consumption for Manufacturing:
The appellants contended that the machinery installed at their factory and job workers' premises was sufficient for manufacturing the exported goods, supported by the MVAT report indicating large manufacturing capacity and significant electricity consumption. The Revenue, however, argued that the machinery and electricity consumption were insufficient for the claimed production.

5. Denial of Cross-Examination of Witnesses:
The appellants argued that the adjudicating authority erred in not granting cross-examination of witnesses whose statements were used against them, citing several case laws. The Revenue countered that sufficient opportunities were provided, but the appellants did not avail them.

6. Non-Appearance of Appellants for Cross-Examination:
The Revenue highlighted that the appellants, particularly Shri Deepak Agarwal, did not appear for cross-examination despite multiple summonses. This non-appearance was used to support the Revenue's case.

7. Relevance of Maharashtra Value Added Tax (MVAT) Report:
The appellants relied on the MVAT report to support their claims of receiving and using inputs. The Revenue argued that the MVAT report was not relevant as it pertained to a different period (2008) than the period under investigation (October 2004 to March 2006).

Conclusion:
The Tribunal noted the contradictory statements and the need for cross-examination of witnesses. It found that the adjudicating authority did not properly appreciate the MVAT report and failed to verify additional records from the jurisdictional Deputy/Assistant Commissioner. Consequently, the order was set aside, and the matter was remanded back to the adjudicating authority for a fresh decision after allowing cross-examination and affording the appellants an opportunity to explain their case.

Order:
The appeals filed by the appellants were allowed by way of remand to the adjudicating authority.