2018 (11) TMI 1203 - AT - Central Excise

CENVAT Credit - appellants have availed CENVAT Credit which was fraudulently passed on by M/s. Leadsman Enterprises - allegation of the Department is that since the first stage dealer has received only MS Wires and Coils from the manufacturer, they cannot issue CENVAT invoices to the appellants describing the goods as scrap - Held that - When the invoices had clearly stated the description of the goods and the duty paid, the appellants cannot be expected to go behind the accounts maintained or transactions made by the first stage dealer so as to ensure whether the credit availed is correct or not. To hold the assessee liable for availing credit fraudulently, there must be positive evidence to show that they have indulged in some wilful act enabling them to avail such wrong credit - In the present case, there is nothing brought out from the evidence so as to establish that the appellants have any role in the offence, if any, committed by M/s. Leadsman Enterprises and other first stage dealers. The appellants have availed CENVAT Credit on the duty paid on the invoices. So also the entire transaction of the appellant has been through banks. Apart from certain assumptions based on the statements given by M/s. Leadsman Enterprises, there is no cogent evidence to prove that the appellants have availed wrong credit. The demand raised cannot sustain and required to be set aside - appeal allowed - decided in favor of appellant.

Summary

Issues: Alleged fraudulent availment of CENVAT Credit on MS Scrap by the appellants.

Analysis:
1. The Department alleged that the appellants fraudulently availed CENVAT Credit on MS Scrap passed on by certain registered dealers. The officers found discrepancies in the purchase documents of the appellants from various dealers, leading to suspicion of fraudulent credit availed through incorrect descriptions on invoices.

2. The Department issued a Show Cause Notice proposing recovery of fraudulently availed credit, interest, and penalties. The Original Authority confirmed the demand, interest, and penalties, holding the appellants liable for availing ineligible credit based on the investigation's findings.

3. The Ld. Consultant for the appellant argued that the appellants purchased goods as per invoices issued by first-stage dealers, maintaining that the raw materials were scrap, and payments were made through banks. He contended that the Department failed to provide evidence of contravention of CENVAT Credit Rules or the appellants' involvement in any fraudulent activities.

4. The Ld. Consultant cited Tribunal and High Court decisions to support the argument that the appellants acted diligently in their transactions with first-stage dealers, and the allegations lacked substantial evidence to prove fraudulent credit availed by the appellants.

5. The Ld. AR supported the Department's findings, emphasizing that the description of goods as scrap on invoices from dealers indicated fraudulent credit availed by the appellants. However, the appellants maintained that they acted in good faith based on the information provided by the dealers.

6. After hearing both sides, the Tribunal noted that the appellants used scrap as raw materials, paid excise duty based on invoice descriptions, and conducted transactions through banks. The Tribunal emphasized that without positive evidence showing the appellants' willful involvement in fraudulent activities, holding them liable for incorrect credit availed was unjustified.

7. Citing the Hon'ble Allahabad High Court's judgment, the Tribunal emphasized that manufacturers need not extensively verify first-stage dealers' records beyond reasonable diligence. The Tribunal concluded that the demand raised against the appellants was not sustainable and set it aside with consequential benefits, if any.

8. Therefore, the Tribunal ruled in favor of the appellants, setting aside the demand for fraudulently availed CENVAT Credit and providing relief to the appellants based on the lack of concrete evidence implicating them in fraudulent activities.