2022 (3) TMI 934 - AT - Central Excise

Irregular availment of Cenvat credit - inability to produce proper documents in support of such availment of Cenvat credit - reverse charge mechanism - Rule 9 of the Cenvat credit Rules, 2004 - demand of Service Tax on legal charges - Penalty imposed on the Director under Rule 26 of the Central Excise Rules, 2002 - HELD THAT - The Appellant has produced their entire input Cenvat Credit Register certified by a Chartered Accountant and also produced copies of invoices said to be missing for the period 2012-13 in the Order-in-Original by the department - On perusal of such Registers and invoices, it is opined that it is not in dispute that the Appellant No.1 has received the goods or services on which Cenvat credit has been availed. The only dispute as alleged in the Show Cause Notice was relating to production of documents for the purpose of said Cenvat credit for which an independent verification has been done by the Range superintendent also vide its report dated 20/06/2017. To meet the ends of justice, it is deemed appropriate to remand the matter to the Ld. Adjudicating authority with a direction to verify all the documents which are in possession of the Appellant to the extent of the confirmation of demand of ₹ 2,36,08,399/- only. Needless to say that sufficient time and opportunity to represent be given to the Appellant. Demand of Service Tax on legal charges - HELD THAT - It is seen from the documents submitted with the Appeal Paper book that the Appellant has not made any payments to the Advocate concerned and that the charges have been debited by the bank. Also from the invoice of the Advocate it is clear that the same has not been issued in favour of the Appellant. Hence the demand on such invoices cannot survive. Penalty imposed on the Director under Rule 26 of the Central Excise Rules, 2002 - HELD THAT - The captioned case only relates to non- production of documents by the Appellant before the Department and there is no allegation of availment of Cenvat credit without receipt of goods and /or services. Hence the imposition of penalty under Rule 26 of the Central Excise Rules, 2002 on the Director is unjustified and we accordingly set aside the same with consequential relief as per law. Whether the learned Adjudicating authority has not verified the correctness of the verification report of the Range Superintendent? - HELD THAT - The same is merely an assumption without any corroborative evidence in this regard produced by the Department. On the other hand the Ld. Commissioner has relied upon the verification report and based on that only the demand has been reduced for the Cenvat credit as it has been seen that the range Superintendent had verified the documents to that extent. It is also a fact that the Show Cause Notice had not disputed the receipt of goods and /or services and also that the Appellant had been paying Excise duty regularly in its ER 1 return for the manufacture of goods - It is clear that more than 17000 pages of documents were examined in details and the department has taken photo copies of all such documents, the assumption that the Appellant Company may not have the documents or original documents of Cenvat credit is something which cannot be acceded to. Appeal disposed off.

Issues Involved:
1. Demand of Cenvat credit of ?2,36,08,399/- and Service Tax of ?7,663/-.
2. Imposition of penalty of ?2,00,00,000/- on the Director.
3. Department's appeal against dropping of demand of ?33,41,12,047/-.

Detailed Analysis:

1. Demand of Cenvat Credit and Service Tax:
The Appellant company was engaged in manufacturing and availed Cenvat credit of ?35,77,20,446/- for the period 2011-12 to 2013-14. The Department issued a Show Cause Notice on March 22, 2016, proposing recovery of the entire Cenvat credit and Service Tax of ?7,663/- due to non-compliance with Rule 9 of the Cenvat Credit Rules, 2004. The Appellant contended that they had all the required documents and the demand was vague. The Ld. Commissioner confirmed a reduced demand of ?2,36,16,062/- based on a verification report by the Range Superintendent.

2. Imposition of Penalty on the Director:
A penalty of ?2,00,00,000/- was imposed on the Director under Rule 26 of the Central Excise Rules, 2002. The Appellant argued that none of the ingredients of Rule 26 were applicable, and the penalty was unjustified as the case only related to non-production of documents.

3. Department's Appeal Against Dropping of Demand:
The Department appealed against the dropping of ?33,41,12,047/- of the total demand, arguing that the Ld. Adjudicating authority relied on the Range Superintendent’s report without verifying the original documents. The Appellant countered that the verification report was thorough and the demand was based on assumptions.

Judgment:

Issue 1: Demand of Cenvat Credit and Service Tax
The Tribunal noted that the Appellant had produced the entire input Cenvat Credit Register certified by a Chartered Accountant and sample invoices. It was observed that the Appellant had received the goods/services and the dispute was only about document production. The Tribunal remanded the matter to the Ld. Adjudicating authority for verification of the documents related to the confirmed demand of ?2,36,08,399/-. The demand of Service Tax on legal charges was set aside as the charges were debited by the bank and not paid to any Advocate.

Issue 2: Imposition of Penalty on the Director
The Tribunal found the imposition of penalty under Rule 26 on the Director unjustified as the case involved non-production of documents and not fraudulent availment of Cenvat credit. The penalty was set aside with consequential relief as per law.

Issue 3: Department's Appeal Against Dropping of Demand
The Tribunal dismissed the Department's appeal, stating that the Ld. Commissioner had rightly relied on the Range Superintendent’s verification report. The Department's assumption that the Appellant might not have the documents was unfounded. The verification report was detailed, examining over 17,000 pages of documents.

Conclusion:
- Excise Appeal No.78517/2018: Remanded for document verification.
- Excise Appeal No.78518/2018: Allowed with consequential relief.
- Excise Appeal No.78838/2018: Dismissed.

(Order pronounced in the open court on 15 March 2022.)

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