2012 (2) TMI 266 - AT - Central Excise

Availment of non- existent Cenvat Credit by Second stage dealer on goods non-manufacturing & non-payment of duty by manufacturer of goods assessee claimed credit on basis of invoices showing payment of duty Held that - Prima facie there are evidences appearing to show that the credit that was passed on was not against proper duty payment. The real merit in the matter can be decided only during final hearing. Thereby, appellants are directed to make pre-deposit.

Summary

Issues:
1. Imposition of penalty on the second stage dealer for alleged duty evasion in purchasing iron and steel products.
2. Dispute regarding duty payment on goods purchased from a manufacturer who issued fraudulent invoices.
3. Requirement of depositing 25% of the penalty amount for admission of appeal.

Analysis:

Issue 1: Imposition of penalty on the second stage dealer
The Appellant, a second stage dealer, purchased iron and steel products from a first stage dealer who, in turn, claimed to have sourced the goods from a manufacturer. However, a search revealed that the manufacturer did not manufacture the goods and had not paid duty on them. Consequently, show cause notices were issued to all parties involved, resulting in the imposition of a penalty equal to the duty amount on three invoices issued by the appellants.

Issue 2: Dispute regarding duty payment on goods
The Appellant's counsel argued that the goods were received by the buyer, and the appellants received invoices showing duty payment from the first stage dealer. It was contended that there was no substance in the case made against them. The Revenue's argument focused on the investigation revealing fraudulent invoices issued by the manufacturer to various parties, including the first stage dealer. The key issue highlighted was whether excise duty was paid on the goods, emphasizing the practice of procuring goods from the non-duty paying sector with fraudulent invoices.

Issue 3: Requirement of depositing 25% of the penalty amount
After considering the arguments, the judge found prima facie evidence suggesting improper duty payment. The judge directed the appellants to deposit 25% of the penalty amount within six weeks for the appeal's admission. It was further ordered that the collection of the remaining penalty amount would be stayed during the appeal's pendency, with compliance to be reported on a specified date.

This judgment underscores the importance of proper duty payment in transactions involving goods subject to excise duty. The case highlights the consequences of relying on fraudulent invoices and the need for dealers to ensure the legitimacy of their supply chain to avoid penalties and legal repercussions.