2013 (10) TMI 167 - AT - Central Excise

Cenvat Credit on M.S. scrap - stay - credit denied on the ground that they had availed credit on the basis of dealer s invoices, with description of goods as M.S. scrap. On investigation, it was found that dealers purchase invoice shown M.S. coils/wires and they issued cenvat invoice of M.S. scrap to the applicant, which was purchased from open market without any duty paying document. - Held that - It appears that M.S. scrap received by the applicant is bazaar scrap and no duty was paid. The dealer produced the purchase invoice of M.S. coils/wires. They could not produce purchase invoice of M.S. scrap supplied to the applicant. The statements of the dealer were corroborated with the manufacturer. It appears from the statements of applicant No.2 and the employees of Applicant No.1 that they had knowledge of such irregularity. - prima facie case is against the assessee - stay granted partly.

Summary

Issues:
1. Denial of Cenvat credit on M.S. scrap
2. Burden of proof on manufacturer for admissibility of Cenvat credit
3. Alleged irregularity in procurement of M.S. scrap
4. Failure to discharge burden of proof for waiver of pre-deposit

Analysis:
1. The judgment revolves around the denial of Cenvat credit on M.S. scrap to the Applicant No.1, a manufacturer of carbon steel and alloy steel castings. The denial was based on the discrepancy between the description of goods in the dealer's invoice as M.S. coils/wires and the subsequent issuance of a Cenvat invoice of M.S. scrap to the applicant. This led to a demand of duty amounting to Rs.36,68,898/- along with interest and penalties on the applicant and a penalty on the Managing Director, Applicant No.2.

2. The Tribunal examined the provisions of Rule 9(5) of the Cenvat Credit Rules, 2004, which place the burden of proof regarding the admissibility of Cenvat credit on the manufacturer of the final product. In this case, it was observed that the applicant received M.S. scrap accompanied by an invoice from a second-stage dealer, who later admitted to supplying bazaar scrap (not from a duty-paid source). The lack of a purchase invoice for the M.S. scrap supplied to the applicant, coupled with statements from the dealer and corroborating evidence, indicated that the M.S. scrap received was not duty-paid, leading to the conclusion that the denial of credit was justified.

3. The judgment highlighted the alleged irregularity in the procurement of M.S. scrap, indicating that the applicant and its employees were aware of the situation. Despite the applicant's submission that they were unaware of any irregularities on the dealer's part, the statements and evidence presented suggested otherwise. The failure to discharge the burden of proof further supported the decision to uphold the demand of duty.

4. Finally, the Tribunal found that the applicants failed to establish a prima facie case for the waiver of pre-deposit of the entire amount of duty, interest, and penalties. While the applicant had already paid 25% of the duty, they were directed to deposit an additional amount of Rs.9,00,000/- within 8 weeks. Upon compliance with this directive, the pre-deposit of the remaining balance of duty, interest, and penalties for Applicant No.1, as well as the penalty for the other applicant, would be waived, and recovery stayed during the pendency of appeals. Compliance was required to be reported by a specified date.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision regarding the denial of Cenvat credit on M.S. scrap and the burden of proof on the manufacturer.