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TMI Blog2014 (3) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Apex Alloys Steel Pvt. Ltd. there is no evidence that cheque payments made were subsequently compensated by the second stage dealer by cash payment after deducting his commission. In the absence of any such evidence cenvat credit cannot be denied to the manufacturer recipients and it cannot be held that extended period of five years is applicable. - cenvat credit is admissible to the manufacture recipients, except in the case of M/s. Apex Alloys Steel Pvt. Limited, on merits as well as time bar. - Decided partly in favor of assessee. Regarding penalties - for the period prior to 01.3.2007 on the first stage dealer or second stage dealer - Held that:- first appellate authority was justified in upholding penalties against appellants even for the period prior to amendment of Rule 26 of the Central Excise Rules, 2002 - levy of penalty confirmed. - Appeal No. : E/457,576,564,510,745,752/2012, E/10801-10802/2013 - - - Dated:- 28-2-2014 - Mr. H.K. Thakur, J. For the Appellant : Shri N.K. Tiwari, Shri P.V. Sheth, Shri Sarju Mehta and Shri N.K. Oza, Advocates For the Respondent : Shri Manoj Kutty, A.R. JUDGEMENT Per : Mr. H.K. Thakur; The issue involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer recipients took cenvat credit on the basis of invoices issued by second stage dealer. It is the case of the Revenue that both the first stage dealer and the second stage dealer only issued invoices without the movement of inputs. These allegation was based on the verifications done from the RTO, Ahmedabad which revealed that the vehicle numbers mentioned in the transport documents and invoices are not capable of transporting the huge quantities of inputs involved in the present proceedings. The proprietor of the first stage dealer and the second stage dealer admitted that for the purpose of passing of cenvat credit only the documents were prepared showing movement from the first stage dealer to second stage dealer without actual movement of inputs. It is also the case of the Revenue that second stage dealer have passed on the credit to the manufacturers of M.S. Castings, S.S. Castings, C.I. Castings and S.S. Castings (rough) (Manufacturer recipients) without receipt of inputs. 2. Shri P.V. Sheth (Advocate) appearing on behalf of the appellant at Serial No. (vi) (vii) of Para -1 above, argued that both inputs and duty paying documents were received by manufacturer re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court judgment dated 21.04.2010 in Tax Appeal No. 24 of 2009. (ix) CCE, Chandigarh vs. Neepaz Steels Limited - [2008 (230) ELT 218 (P H)] (x) Monarch Metals Pvt. Limited vs. CCE, Ahmd. - [2010 (261) ELT 508 (Tri. Ahmd.)] (xi) Commissioner vs. Dhanlaxmi Tubes Metal Inds. - [2012 (282) ELT 206 (Guj.)] (xii) Nestle India Limited vs. CCE, Chandigarh - [2009 (235) ELT 577 (S.C.)] (xiii) CCE vs. Fermenta Pharma Biodil Limited - [2009 (234) ELT 609 (H.P.)] 6. Shri Manoj Kutty (AR) appearing on behalf of the Revenue defended the orders passed by the lower authorities and argued that first stage dealer and second stage dealer have admitted that only documents were prepared without movements of inputs between the two. He made the Bench go through Para 5.4 of OIA No. 133/2012(Ahd-II)CE/MM/Commr(A)/Ahd dated 09.04.2012, passed by first appellate authority in the case of Apex Alloys Steel Pvt. Limited to emphasise that cheque payments were made only on record but later equal cash amounts were returned by M/s. Apex Alloys to the second stage dealer. It was thus the case of the Revenue that denial of cenvat credit and imposition of penalties upon all the appellants was justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after deducting his commission. In the absence of any such evidence cenvat credit cannot be denied to the manufacturer recipients and it cannot be held that extended period of five years is applicable. There is no evidence on record that manufacturer recipients, other than M/s. Apex Alloys Steel Pvt. Ltd., were aware of the fact that inputs received by them are not the same for which only cenvatable documents were received by the second stage dealer. In view of the case laws relied upon by the appellants it has to be held that cenvat credit is admissible to the manufacture recipients, except in the case of M/s. Apex Alloys Steel Pvt. Limited, on merits as well as time bar. Accordingly, appeals filed by the appellants at Serial Nos. (i) (vii) and (viii) of Para-1 above are required to be allowed. Appeal filed by the appellant at Serial No. (iv) of Para-1 above is required to be rejected. 8. So far as imposition of penalties upon appellants mentioned at Serial Nos. (ii) (iii) (v) and (vi) are concerned, it is observed that enough materials have been produced by the investigation that both, the first stage dealer and second stage dealers were aware that there was no movement of inp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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