2010 (1) TMI 557 - AT - Central Excise

Credit - Allegation that goods could not have been actually supplied by the registered dealers to the manufacturers; the invoices issued by them were not proper documents for the purpose of passing on the credit; the credit taken by the manufacturers based on such documents were not available to them and therefore, to be recovered - When the Department has shown that certain particulars relating to transport of the goods mentioned therein are on the face of it wrong, the burden of proving that the goods mentioned in the documents were delivered to the manufacturers is shifted to the said dealers. Even if their claim that they could not/need not verify the correctness of the vehicle numbers as given by the trans porters were to be accepted, it is to be observed that nothing prevented them from adducing other evidence relating to transport of the goods to the manufacturers. - The eligibility for taking of credit by the manufacturers on the basis of documents issued by the dealers is necessarily dependent upon the eligibility of the dealers to pass on the credit. If the goods are not proved to have been delivered by the dealers to the manufacturers, the invoices issued by the dealers could not be treated as valid documents for passing on the credit.- Appeal is allowed

Summary

Issues Involved:
1. Alleged diversion of imported goods by registered dealers.
2. Invalidity of invoices for passing on Cenvat credit.
3. Burden of proof on registered dealers and manufacturers.
4. Compliance with obligations under Notification No. 17/2001-Cus.
5. Eligibility of manufacturers to take credit based on dealers' documents.
6. Discrepancies in transportation documents and vehicle numbers.
7. Remand for fresh consideration and opportunity to provide evidence.

Detailed Analysis:

Alleged Diversion of Imported Goods by Registered Dealers:
The case revolves around the allegation that importers-registered dealers diverted imported heavy melting scrap and issued invoices without actual supply of goods to manufacturers. The original authority found that the goods could not have been supplied as claimed, leading to the recovery of duty and imposition of penalties. The Commissioner (Appeals) set aside these orders, prompting the Department to appeal.

Invalidity of Invoices for Passing on Cenvat Credit:
The Department argued that the invoices issued by the registered dealers were not valid documents for passing on Cenvat credit due to discrepancies in transportation details. The Tribunal emphasized that the eligibility of manufacturers to take credit is dependent on the validity of the dealers' documents. If the goods were not delivered as per the invoices, the documents are invalid for credit purposes.

Burden of Proof on Registered Dealers and Manufacturers:
The Tribunal noted that the burden of proof lies on the registered dealers to demonstrate that the goods were delivered to the manufacturers. Similarly, manufacturers must prove that they received the goods and used them in production. The discrepancies in vehicle numbers shifted the burden of proof to the dealers and manufacturers.

Compliance with Obligations under Notification No. 17/2001-Cus:
The registered dealers imported the scrap under concessional duty rates as per Notification No. 17/2001-Cus. They were required to fulfill specific conditions, including providing end-use certificates. The Tribunal found that the end-use certificates were based on records and not actual verification, questioning their reliability.

Eligibility of Manufacturers to Take Credit Based on Dealers' Documents:
The Tribunal highlighted that manufacturers' eligibility to take credit is contingent upon the dealers' compliance with their obligations. Since the dealers' documents had significant discrepancies, the manufacturers' credit claims were also in question. The Tribunal emphasized that the manufacturers must show that they received duty-paid goods under valid invoices.

Discrepancies in Transportation Documents and Vehicle Numbers:
The investigation revealed that many vehicle numbers on the invoices were either not allotted or belonged to non-transport vehicles. This raised doubts about the actual transportation of goods. The Tribunal found it implausible that heavy melting scrap could be transported by such vehicles, shifting the burden of proof to the dealers.

Remand for Fresh Consideration and Opportunity to Provide Evidence:
The Tribunal remanded the matter to the original authority for fresh consideration, allowing the respondents to produce evidence to support their claims. The Tribunal directed the original authority to provide detailed findings on each issue and grant reasonable opportunity to the parties to present their case.

Conclusion:
The appeals were allowed by way of remand, setting aside the orders of the Commissioner (Appeals) and the original authority. The respondents were directed to submit written submissions and evidence within 45 days. The original authority was instructed to provide detailed findings on each issue, ensuring a fair opportunity for the parties to present their case.