2018 (10) TMI 1062 - AT - Central Excise

CENVAT Credit - fake invoices - without receipt of goods, the appellant had availed fraudulent Cenvat Credit in respect of Central Excise duty indicated in the invoices of the manufacturer/dealer - Held that - Since under the instructions of Chemspan Marketing, the goods were consigned by the manufacturer to the appellant s factory and detailed particulars of movement of goods were reflected in the invoices, it cannot be said that the appellant did not receive the goods and availed fraudulent Cenvat Credit - the dealer had also maintained adequate records to demonstrate receipt of excisable goods at its registered premises and thereafter, dispatch of those goods from such premises to the factory of the appellant - the receipt of duty paid goods under the cover of Central Excise invoice in the factory of the appellant cannot be questioned or doubted under such circumstances. In absence of any plausible evidence being produced by Revenue in support of claim of non-receipt of duly paid goods in the factory and availment of wrong credit by the appellant, the adjudged demand cannot be confirmed on the appellant - credit allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Availment of fraudulent Cenvat Credit without receipt of goods
- Imposition of penalty under Rule 15 (1) of Cenvat Credit Rules, 2004
- Adjudication order confirming Cenvat Credit and imposing penalty
- Appeal before the Ld. Commissioner (Appeals) and subsequent rejection
- Enhancement of penalty under Rule 15 (2) of the Rules read with Section 11AC of the Central Excise Act, 1944
- Liability to pay interest under Rule 14 of the Cenvat Credit Rules read with Section 11AA & 11AB of the Act
- Tribunal's decision on the impugned order

Analysis:
The case involved the appellant, engaged in the manufacture of Polyvinylidene Chloride (PVDC) coated film and aluminum foils for pharma packaging, registered with the Central Excise department. The Central Excise officers alleged that the appellant availed fraudulent Cenvat Credit without receiving goods, leading to show-cause proceedings. The adjudication order dated 28/02/2014 confirmed Cenvat Credit of &8377; 30,50,711/- and imposed a penalty of &8377; 8,55,000/- under Rule 15 (1) of Cenvat Credit Rules, 2004. Both the appellant and Revenue appealed before the Ld. Commissioner (Appeals), who rejected the appellant's appeal and enhanced the penalty to the amount of denied Cenvat Credit, along with imposing interest under Rule 14 of the Cenvat Credit Rules read with Section 11AA & 11AB of the Act.

The appellant procured raw materials, specifically "Ethyl Acetate," from registered dealers under the Central Excise statute. The department alleged that the appellant availed Cenvat Credit without actual receipt of goods. Upon examination of invoices, it was found that in some cases, the goods were directly consigned to the appellant by the manufacturer through a dealer, complying with relevant laws. In other instances, the dealer maintained records demonstrating the receipt and dispatch of goods to the appellant's factory. The Tribunal noted that the appellant's receipt of duty-paid goods was supported by evidence, and the allegations of non-receipt and wrongful credit were unsubstantiated.

The Tribunal, after considering the evidence and legal provisions, found no justifiable grounds to uphold the impugned order. Consequently, the appeal was allowed in favor of the appellant, setting aside the penalties and confirming the appellant's compliance with Cenvat Credit rules. The judgment highlighted the importance of proper documentation and compliance with statutory requirements in availing Cenvat Credit to avoid allegations of fraudulent practices.