2018 (1) TMI 483 - AT - Central Excise

CENVAT credit - fake invoices - receipt of invoices without receipt of goods - whether the penalties imposed on both the appellants is correct or otherwise and whether the goods were held liable for confiscation will stand scrutiny of law or otherwise? Held that - In the case of materials on which CENVAT credit was raised without the receipt of the material there cannot be any confiscation of the goods as the goods never travelled from the supplier s premises to the appellant. Hence there cannot any goods which to be held liable for confiscation - As regards the finished goods manufactured and cleared by the appellant duty has been discharged by the appellant and the goods are cleared from main-appellant s premises on duty paying documents hence when the goods are not available for confiscation, the question of confiscation does not arise - It is settled law that when the goods are not available for confiscation, question of imposing redemption fine in lieu of confiscation does not arise. As regards demands raised, since the appellant has not contested the said demands before the lower authorities and also before this bench, the demand of an amount of ₹ 1,90,983/- stands upheld and having paid the same, the appropriation ordered by the lower authorities is also correct - the equivalent amount of penalty imposed on the main-appellant is correct and does not require any interference. Equivalent amount of penalty imposed on the individual Shri Ashok Katyal - Held that - it is very clear that the goods never moved from M/s Synoprene Polymers Pvt. Ltd. to the main appellant and the confiscation ordered by the lower authority having been set aside by me, the penalty imposed on the individual Shri Ashok Katyal is unwarranted and needs to be set aside. Appeal allowed in part.

Summary

Issues:
Appeal against confirmation of demand of duty, interest, and penalties, Confiscation of goods and redemption fine upheld, Correctness of penalties imposed on both appellants, Liability of goods for confiscation, Validity of demands raised, Penalty imposed on individual Director for availing fraudulent credit.

Analysis:
1. Confirmation of Demand and Confiscation of Goods: The main issue in this case revolved around the confirmation of demand of duty, interest, and penalties, as well as the confiscation of goods and redemption fine. The main appellant had availed ineligible CENVAT credit without actual receipt of goods. The lower authorities confirmed the demand, imposed penalties, and ordered confiscation of finished goods and inputs. However, upon review, the Appellate Tribunal found that confiscation of goods was not justified as the materials never reached the appellant's premises. Therefore, the findings of the lower authorities regarding confiscation were deemed incorrect and set aside.

2. Validity of Penalties Imposed: The correctness of penalties imposed on both the main appellant and the individual Director was also a key issue. The main appellant had utilized ineligible CENVAT credit for discharging duty liability, leading to penalties. The Tribunal noted that the supplier confirmed that only invoices were provided without actual material receipt, corroborating the appellant's claim. Consequently, the equivalent penalty imposed on the main appellant was upheld. However, the penalty on the individual Director was found unwarranted as the provision for penalty required goods liable for confiscation, which was not the case here. Thus, the penalty on the individual Director was set aside.

3. Validity of Demands Raised: The demands raised against the main appellant were upheld since they were not contested before the authorities. The Tribunal affirmed the demand amount and the appropriation ordered by the lower authorities. The arguments presented by the appellant's counsel regarding the belated show cause notice and limitations were not considered sufficient to challenge the demands.

4. Conclusion: The Tribunal disposed of the appeals by setting aside the confiscation of goods and redemption fine, upholding the demand against the main appellant, confirming penalties on the main appellant, and setting aside the penalty imposed on the individual Director. The judgment clarified the legal aspects of availing CENVAT credit without material receipt, the liability for penalties, and the requirements for confiscation of goods under the Central Excise Rules, providing a comprehensive analysis of the issues raised in the case.