2020 (3) TMI 909 - AT - Central Excise

Clandestine removal - shortage of goods - wrong calculation of abatement during the period 2009-10 - Shortage of goods compared to RG-1 register - CENVAT Credit availed on capital goods which were received under the cover of invoices issued in the name of another company. HELD THAT - After recording that it was indeed a merger of the company as per the order of Hon ble High Court as per which the assets and liabilities of the merged company were transferred to the transferee company i.e. the appellant and after recording that CENVAT Credit cannot be denied to them, the Ld. First appellate authority sought to deny it only on the ground that the appellant should have approached the authorities to obtain permission for availing the CENVAT Credit, in terms of the proviso to Rule 9(2) of CCR 2004. A perusal of this rule would show that if the invoice does not contain all the particulars but contains some particulars then the Dy. Commissioner or Asst. Commissioner may, if he is satisfied that the goods are covered by the said document have been received and accounted for, allow the credit. This is not the case in the present appeal. The name of the consignee is clearly given in the invoice and the consignee could have availed the CENVAT Credit. All assets and liabilities of the consignee have, by virtue of the order of the merger issued by Hon ble High court, been transferred to the appellant. Therefore, there is no reason or requirement for the appellant to again approach the Asst. Commissioner or Dy. Commissioner to take permission to take credit of the goods which have been received. There are no force in the observations of the first appellate authority with respect to this amount. Imposition of penalties - HELD THAT - There are no factual matrix any element necessary to invoke either the extended period of limitation for demanding under section 11A or imposing penalty under Section 11AC. The basis of the entire demand is the ER-1 returns and the invoices produced by the appellants themselves except to the extent of shortage noticed during physical verification of stock. The duty involved in such shortage is ₹ 6,647/- only and Ld. Counsel would submit that it is on account of damage caused by the rats - there are no reason to impose any penalty on account of this shortage. Therefore, all penalties need to be set aside. Appeal allowed in part.

Summary

Issues Involved:
Challenging Order-in-Appeal by the Commissioner of Customs, Central Excise & Service Tax; Discrepancies found during factory premises search; Differential duty calculation; Shortage of goods; CENVAT Credit issues; Imposition of penalties on the appellant and individuals; Dispute over denial of CENVAT Credit on capital goods; Appeal against penalties imposed.

Detailed Analysis:

1. Discrepancies Found:
The appellant, a manufacturer of various products, was found to have discrepancies in central excise duty payment and bookkeeping during a search of their factory premises. These included differential duty calculation errors, shortage of goods, and issues related to CENVAT Credit on capital goods.

2. Imposition of Penalties:
The initial order imposed demands and penalties on the appellant and certain individuals associated with the firm. However, the first appellate authority set aside personal penalties on individuals due to the lack of proper show cause notices. The penalties under section 11AC were also questioned.

3. CENVAT Credit Dispute:
A significant dispute arose regarding the denial of CENVAT Credit on capital goods received under invoices issued in the name of another company that had merged with the appellant. The appellant contested this denial, arguing that all assets and liabilities had been transferred to them as per a court order.

4. Judgment and Disposition:
Upon review, the appellate tribunal upheld most demands that were not disputed by the appellant, such as wrong abatement calculation and shortage of goods. However, the denial of CENVAT Credit on capital goods was set aside, emphasizing that the merger of the companies entitled the appellant to claim the credit. All penalties imposed were also set aside.

5. Operative Conclusion:
The appeal was allowed, modifying the impugned order to uphold certain demands while setting aside the denial of CENVAT Credit and all penalties imposed. The judgment clarified the legal basis for the decisions, emphasizing compliance with rules and the transfer of assets in the case of mergers.

This detailed analysis of the legal judgment highlights the issues, disputes, and the tribunal's decision, providing a comprehensive overview of the case.