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2017 (8) TMI 1105 - AT - Central ExciseClandestine removal - SS Flats - clearance of A.S. & M.S. Ingot/Bars of Rods and Ferro Alloys without dispatching any goods to them so that such recipients could avail Cenvat Credit on the invoices without receiving the corresponding goods - Held that - the contention of the Ld. Advocate that the adjudicating authority did not follow the requirements of Section 9D of the Central Excise Act, 1944 is correct - I find that almost the entire case is built on the statements of these persons and other corroborative evidence requires admission of these statements as evidence. It is settled law that the adjudicating authority cannot straight away rely upon the statements recorded during the investigation unless the conditions set out in Section 9D of the Act are fulfilled - the adjudication order is liable to be set aside and the matter requires to be adjudicated afresh after following the procedure laid down under Section 9D of the Act and by following the principles of nature justice - appeal allowed by way of remand.
Issues Involved:
1. Fraudulent availing of Cenvat Credit by M/s BSFL based on invoices issued by M/s HSAL without actual receipt of goods. 2. Fraudulent availing of Cenvat Credit by M/s BSFL in connivance with M/s Dev Enterprises based on cenvatable invoices without actual receipt of goods. 3. Non-compliance with Section 9D of the Central Excise Act, 1944. Issue-wise Detailed Analysis: 1. Fraudulent Availing of Cenvat Credit by M/s BSFL Based on Invoices Issued by M/s HSAL Without Actual Receipt of Goods: The appellants, engaged in manufacturing forgings for automobile parts, were found to have availed Cenvat Credit worth ?36,58,996/- based on invoices issued by M/s HSAL without receiving corresponding goods. Investigations revealed that M/s HSAL was clandestinely clearing SS Flats to manufacturers in Delhi and Jodhpur while issuing cenvatable invoices to manufacturers in Chandigarh, Faridabad, and Rohtak. M/s BSFL failed to produce transportation documents for the consignments from M/s HSAL. Statements from transporters and truck owners indicated that goods were transported to Jodhpur, Ahmedabad, and Delhi, not to M/s BSFL. The Commissioner confirmed the demand and imposed an equal penalty, which was appealed by M/s BSFL. 2. Fraudulent Availing of Cenvat Credit by M/s BSFL in Connivance with M/s Dev Enterprises Based on Cenvatable Invoices Without Actual Receipt of Goods: The appellants procured steel rounds from manufacturers and dealers and were alleged to have availed Cenvat Credit fraudulently in connivance with M/s Dev Enterprises. Investigations revealed that M/s Dev Enterprises issued cenvatable invoices without actual delivery of goods. Statements from Sh. Ram Bilas Bansal and Sh. Ashok Bansal indicated a conspiracy to pass on Cenvat Credit without physical receipt of goods. The adjudicating authority denied Cenvat Credit of ?8,17,729/- and imposed penalties on M/s BSFL and Sh. Pawan Mantri, which led to the appeal. 3. Non-compliance with Section 9D of the Central Excise Act, 1944: The appellants argued that the mandatory requirements of Section 9D were not followed before relying on statements from various individuals, making these statements inadmissible. The Hon’ble Punjab & Haryana High Court in Ambika International & Another vs. Union of India and Another emphasized the necessity of adhering to Section 9D, which stipulates conditions under which statements made before a Central Excise Officer can be considered relevant. The adjudicating authority failed to follow these requirements, leading to the setting aside of the adjudication orders. Judgments Delivered: 1. In Appeal No. E/2554/2009: - The case relied heavily on statements from individuals associated with M/s HSAL and transport companies, which were found to be inadmissible due to non-compliance with Section 9D. - The adjudicating authority did not provide a clear finding on the evidence regarding the diversion of goods. - The matter was remanded back for fresh adjudication following the provisions of Section 9D and principles of natural justice. 2. In Appeal No. E/2146-2147/2009: - Similar issues of non-compliance with Section 9D were identified, with the adjudicating authority relying on statements without fulfilling the procedural requirements. - The demand related to invoices for vehicles HR 29G 7019 and HR 29G 7079 was upheld, as these vehicles were verified to be non-transport vehicles, making the receipt of goods impossible. - The matter, except for the upheld demand, was remanded back for fresh adjudication following Section 9D and principles of natural justice. Conclusion: The appeals were disposed of with the matters being remanded back to the adjudicating authority for fresh adjudication in accordance with Section 9D of the Central Excise Act, 1944, and principles of natural justice. The specific demand related to non-transport vehicles was upheld and required re-quantification.
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