9911796707
TMI Blog2015 (10) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... . - APPEAL No.E/1199 to 1201, 1233, 1234 & 2158/10 With E/MA(Ors)/1447/2011-Mum - - - Dated:- 8-9-2015 - Mr.Anil Choudhary, Member (Judicial) And Mr. Raju, Member (Technical) For the petitioner : Shri.K.R. Bulchandani Shri Navin Gheewala Advocate For the Respondent : Shri.V.K.Singh, Spl. Counsel ORDER Per: Raju 1. The Appellants, (M/s. Accelerate Synthetics Pvt. Ltd.) are registered as manufacturers of grey fabrics. They were availing credit on the basis of certain invoices of Polyster Yarn claiming that the same is being used for manufacture of grey fabrics. They were not manufacturing grey fabrics themselves but were getting the same done by certain weavers of Bhiwandi. In certain independent investigations, in Surat, it emerged that certain dealers were issuing bogus invoices, and the buyers of these bogus invoices were taking the CENVAT credit on the basis of these invoices, without receiving the goods. Thus an alert circular was issued by the Surat Commissionerate. 2. In the said alert circular it was noticed that some of those allegedly bogus parties had issued invoices in the name of appellants (M/s. Accelerate Synthetics Pvt. Ltd) and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Shri Pandey and Mukesh, who all belong to Surat. (ix) In his further statement recorded on 17.1.2006, the following statements were made: On being shown invoices issued by M/s Shiv Trading Company in favour of M/s Accelerated Synthetics Pvt. Ltd., Bhiwandi, being 24 in number, it was categorically stated that the said invoices were not issued by him or by his firm to the best of his knowledge. It was further categorically stated that the signature appearing on the 24 invoices purportedly issued in favour of M/s Accelerated Synthetics Pvt. Ltd. are not the signature of Shri Kashinath Das and the same appear to be forged. It was further stated that Shri Kashinath Das does not know any person by the name of Sudhir Bhimrajka or Tulsidas Goyal or Leo Fernando. 4. This Tribunal in that case has given following findings: 7. Having considered the rival contentions, we find that there are no categorical findings against the appellant so as to prove the charges as alleged in the show-cause notice inspite of there being names available of the alleged supplier in the invoices from whom the appellant allegedly purchased, no enquiry appears to have been done. Further, it is se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be blamed for any misdeclaration or fraud. They argued that since there is no allegation of any fraud or misdeclaration against them extended period of limitation cannot be invoked in view of the decision of Honble High Court of Gujarat (supra). Learned Counsel Shri Bulchandani argued at length trying to draw a parallel between the facts before the High Court of Gujarat in the aforementioned case and in the impugned case. He argued that the facts in both the case are similar and therefore the ratio of the said judgement should apply to the present case. 7. In the impugned order penalty has been imposed on M/s Asha traders and its proprietor for supplying bogus invoices to the main appellants. On behalf of Asha traders the learned counsel Shri Gheewala argued that the invoices Nos. in respect of which penalty has been imposed on his client are also the subject matter in a different proceeding, which has already been adjudicated by the Surat Commissionerate. He argued that since the matter pertaining to these very invoice numbers has already been adjudicated in a different proceeding the same cannot be done again in the present proceedings. 8. The learned AR argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit taken on the same was challenged. The Hon ble High Court in the said case observed as under: 11. We, therefore, find no substance in the contention of the learned Counsel for the Revenue that simply because the original manufacturer is now not traceable, is sufficient for reversal of Cenvat credit already taken by the appellants by virtue of the original invoices. However, at the same time, we find substance in the contention of Mr.Oza and Mr.Champaneri, the learned Counsel appearing on behalf of the Revenue, that in order to get the credit of Cenvat Rule 7 (2) cast a further duty upon the appellants to take all reasonable steps to ensure that the inputs or the capital goods in respect of which the appellants had taken the credit of CENVAT are the goods on which appropriate duty of excise as indicated in the documents accompanying the goods, has been paid. The explanation added to Rule 7 (2) even describes the instances which are the reasonable steps. The appellants in these cases, however, not having taken those steps, cannot get the benefit of the credit even though he is not party to fraud. In his connection, we fully agree with the views taken in the case of Sheila Dy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble High Court has given the decision in a case where there was no allegation on the person being charged of any involvement in creation of the bogus or fake invoices. However it is noticed that in the present case the facts are different. In the present case there are direct allegations on the appellants of being involved in the fraud. In the case before the Hon ble High Court the receipt of goods by the appellants was not in doubt, however, in the present case it has been specifically alleged that the goods have not been received by them and only papers have travelled. Thus it can be seen that the facts in the present case are substantially different from the facts in the case before the Hon ble High Court of Gujarat. The learned Counsel for the appellants argued that the decision of Hon ble High Court of Gujarat was based on the facts in the case of Prayagraj dying and printing mills and others, and in that case the receipt of goods was not challenged. He argued that among the group of appeals before Hon ble High Court of Gujarat, there was also an appeal of M/s Asha traders. In the case of Asha Traders the receipt of goods was challenged. Therefore, the learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
