2019 (3) TMI 1492 - AT - Central Excise

Recovery of erroneous refunds - demand made on the grounds that the farmers are non existence ensuring non supply of raw material by commission agents to J&K based units and absence of evidence of power by the appellant - Held that - The appellant had shown from the records that there was periodical checks conducted by the jurisdictional Central Excise officers, who found that the appellants are manufacturers of the goods and we also take note of the fact that the appellant has obtained necessary permission from the Directorate of Industries to manufacture the goods and necessary permission from the Pollution Control Board and moreover during the period, the appellant is selling the goods and it was found that there was movement of goods inward/outward. Similar issue has been dealt by this Tribunal in the case of S.B. Aromatics vs. CCE & ST, Jammu & Kashmir 2018 (11) TMI 830 - CESTAT CHANDIGARH , where it was held that The appellant (M/s S.B Aromatics) was manufacturer during the impugned period and paid the duty on the goods manufactured by them, therefore, duty on account of erroneous refund cannot be demanded on the allegation that the appellant was not a manufacturer. The demand against the supplier of invoices is not sustainable and it has been held that the suppliers are manufacture of goods and have cleared the same on payment of duty, in that circumstances, the cenvat credit availed by the appellant cannot be denied - the appellant have correctly availed the CENVAT credit on the goods supplied by their suppliers located in the state of Jammu & Kashmir. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Validity of the investigation conducted by the Commissioner of Central Excise, Meerut-II.
2. Legitimacy of the demand for duty and penalties imposed on J&K based manufacturers.
3. Validity of the denial of Cenvat credit to UP based manufacturers.

Issue-wise Detailed Analysis:

1. Validity of the investigation conducted by the Commissioner of Central Excise, Meerut-II:
The investigation initiated by the Commissioner of Central Excise, Meerut-II, targeted various units purchasing Menthol Solution and De-mentholised Oil from Jammu & Kashmir. The investigation alleged that commission agents and farmers were non-existent, implying that J&K based units were not purchasing raw materials, thus not manufacturing finished goods. However, the Tribunal noted that the investigation was not conducted at the end of the appellants and was based only on assumptions and presumptions. The Tribunal referenced previous cases, including S.B. Aromatics vs. CCE & ST, Jammu & Kashmir, and Nanda Mint and Pine Chemicals Ltd., where similar allegations were dismissed due to lack of concrete evidence and proper investigation.

2. Legitimacy of the demand for duty and penalties imposed on J&K based manufacturers:
The adjudicating authority confirmed the demand for duty and imposed penalties based on the assumption that farmers were non-existent, ensuring no supply of raw materials to J&K based units. However, the Tribunal found that periodic checks by jurisdictional Central Excise officers and other departments (e.g., Pollution Control Board, District Industries Department) confirmed the manufacturing activities of the appellants. The Tribunal emphasized that the investigation by Meerut Commissionerate generalized the non-existence of raw material purchases without concrete evidence. The Tribunal concluded that the demand and penalties imposed were not sustainable due to the lack of corroborative evidence.

3. Validity of the denial of Cenvat credit to UP based manufacturers:
The Meerut Commissionerate issued show cause notices to UP based manufacturers to deny Cenvat credit availed on goods purchased from J&K based suppliers. The Tribunal held that the suppliers in J&K were indeed manufacturing goods and clearing them on payment of duty. The Tribunal referenced the case of M/s Arora Aromatic & Others, where it was established that the manufacturing units in J&K were functional and the inputs/finished goods movements were recorded at toll barriers. The Tribunal concluded that the Cenvat credit availed by the appellants was legitimate and could not be denied based on the flawed investigation by Meerut Commissionerate.

Conclusion:
The Tribunal set aside the impugned orders, stating that the proceedings against the appellants were based on assumptions and lacked concrete evidence. The Tribunal recognized the manufacturing activities of the appellants in J&K and upheld their entitlement to the exemption under Notification No. 56/2002-CE dated 14.11.2002. Consequently, the demand for duty and penalties, as well as the denial of Cenvat credit, were deemed unsustainable. The appeals were allowed with consequential relief to the appellants.