2015 (4) TMI 384 - HC - Central Excise

Denia of CENVAT Credit - Bogus invoices - Non verification of records - Held that - Since appellant had made the payment of invoice price by cheque and thereafter it had manufactured finished goods and paid duty thereof, as evident from production dely shown in RG-1 Register as also the demand of duty on goods by taking into account the evidence if any to be produced by the appellant in respect there to and in case the appellant succeeds in proving that the payment of price of goods received against invoice had been paid by cheque and that there was no link or corelation even from the details of the bank account of M/s Shivalik International and M/s Neelkanth relied upon in the notice to suggest that there was a flow back of funds from Sh. R.K. Gupta to the appellant or from any other material and further taking into account the record produced / to be produced by the appellant in support of its plea that it had manufactured goods and shown the manufacture of the finished goods as well as the payment of duty on the said finished goods out of the goods purchased against the invoices and shown the same in the RG-1 Register etc - Matter remanded back to CESTAT to consider these aspects - Decided in favour of assessee.

Summary

Issues Involved:

1. Whether demand can be created on the basis of the statement of a third party who has not been allowed for cross-examination.
2. Whether the findings of the Tribunal are perverse and contrary to the facts and evidence on record.
3. Whether the Tribunal is justified in confirming the demand when the demand against similarly situated buyers has been dropped.
4. Whether an equal amount of penalty is justified when the penalty in other cases has been reduced.

Issue-wise Detailed Analysis:

1. Demand Based on Third-Party Statement Without Cross-Examination:
The appellant contested the demand raised by the respondent-department, arguing that it was based solely on the statement of Sh. R.K. Gupta, the dealer, who was not allowed to be cross-examined. The appellant had specifically requested cross-examination of Sh. R.K. Gupta and the drivers of the vehicles, which was denied by the Adjudicating Authority. The Commissioner (Appeals) supported the appellant's contention, stating that the denial of cross-examination was unjustified and that the evidence brought by the department was inconclusive and insufficient to prove fraudulent availment of credit.

2. Perversity and Contradiction in Tribunal's Findings:
The appellant argued that the findings of the Tribunal were perverse and contrary to the facts and evidence on record. The Tribunal had relied on the statement of Sh. R.K. Gupta, which was general and did not specifically mention that the invoices issued to the appellant were bogus. The Commissioner (Appeals) had noted that the statement of Sh. R.K. Gupta should have been read as a whole and that there was no specific evidence linking the appellant to any fraudulent transactions.

3. Justification of Demand Against Similarly Situated Buyers:
The appellant highlighted that the Tribunal had confirmed the demand against them while similar demands against other buyers, such as M/s Garima Enterprises Private Limited, had been dropped. The Tribunal had misinterpreted the decision in the case of M/s Garima Enterprises, where it was held that consignments of more than 6 MT were not necessarily bogus, and cross-examination was deemed necessary. The appellant argued that their case was similar, and the Tribunal's decision was inconsistent.

4. Justification of Equal Amount of Penalty:
The appellant contended that the equal amount of penalty imposed by the Adjudicating Authority was unjustified, especially when penalties in other similar cases had been reduced. The Commissioner (Appeals) had observed that the Adjudicating Authority imposed the penalty based on inferences drawn from inadmissible and inadequate evidence. The appellant argued that there was no evidence of fraud on their part, and hence, the penalty was unwarranted.

Conclusion and Remand:
The High Court concluded that the matter required reconsideration, particularly regarding the appellant's payment of invoice price by cheque, the manufacture of finished goods, and the payment of duty thereon, as recorded in the RG-1 Register. The Court noted that the CESTAT had not adequately considered these aspects. Consequently, the Court allowed the appeal, set aside the CESTAT's order dated 08.09.2009, and remitted the matter for fresh adjudication. The parties were directed to appear before the CESTAT on 25.02.2015.