2021 (4) TMI 513 - AT - Central Excise

Levy of penalty - CENVAT Credit - goods not supplied only invoices were moved - allegation is that goods were never transported and the goods never crossed the Shambhu Border - Lack of investigation on the part of Revenue - HELD THAT - In this case, it is a fact on record that during the course of investigation, no shortage or excess of the goods were found in the premises of both the appellants. In that circumstance, duty cast on the Revenue to ascertain the fact if the appellant no.1 has not received the goods, then from where, they procured the goods and used the same for manufacturing of dutiable goods which have been cleared on payment of duty. Further, it was also the duty of the Revenue to find out where M/s Mas Equipments Pvt Ltd has cleared the goods without payment of duty. This is lacking in the investigation which gives benefit of doubt in favour of the appellants. Penalty on M/s Mas Equipments Pvt Ltd (appellant no.2) is not imposable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against denial of cenvet credit to M/s Vardhman Industries Limited due to alleged non-physical supply of goods by M/s Mas Equipments Pvt Ltd and imposition of penalty on both appellants.

Analysis:
The appeal challenged the impugned order denying cenvet credit to M/s Vardhman Industries Limited and imposing penalties based on the allegation that M/s Mas Equipments Pvt Ltd did not physically supply goods, only invoices were moved. The counsel for the appellants argued that M/s Vardhman Industries Ltd is now under insolvency and taken over by M/s JSW Steel Ltd. They emphasized that no shortage or excess of goods were found during investigation, all payments were made through account payee cheques, and no evidence of fund diversion was presented by the Revenue. The counsel also pointed out discrepancies in the investigation, including lack of cross-examination of transporter statements, questioning the reliability of the evidence presented.

The Revenue's representative contended that the transporter admitted to not transporting the goods beyond a specific border, indicating that the goods were not physically moved, supporting the penalty imposition. However, the tribunal noted that while the allegation was based on non-physical receipt of goods by M/s Vardhman Industries Ltd, no evidence of such wrongdoing was found during the investigation. The tribunal highlighted the Revenue's failure to establish how M/s Vardhman Industries Ltd procured goods for manufacturing dutiable products if not received from M/s Mas Equipments Pvt Ltd. Additionally, the tribunal criticized the reliance on case laws without proper explanation or relevance to the current case, emphasizing the lack of cross-examination of third-party statements crucial to the investigation.

Ultimately, the tribunal ruled in favor of the appellants, stating that the penalty on M/s Mas Equipments Pvt Ltd was not justifiable, and consequently, the impugned order was set aside. The appeals were allowed, indicating a favorable outcome for the appellants based on the lack of concrete evidence supporting the allegations and procedural flaws in the investigation process.