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TMI Blog2015 (12) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent : Shri Pramod Kumar, Authorized Representative (Jt. CDR) ORDER Per. Rakesh Kumar :- All the appeals arise out of order-in-appeals No. 181-188/CE/APPL/DLH-IV/2011 dated 07/12/11 passed by Commissioner, Central Excise (Appeals), Delhi. The facts leading to filing of these appeals are, in brief, as under. 1.1 M/s Namo Alloys Pvt. Ltd., Faridabad (hereinafter referred to as Namo) are manufacturers of Aluminium ingots, zinc ingots and other alloy metal ingots. The period of dispute in this case is from January 2007 to November 2009. M/s Havells India Ltd. (hereinafter referred to as Havells) having their unit in Uttrakhand are engaged in manufacturer of electrical appliances. During the period of dispute, Havells were sending alum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hased certain quantity of copper ingots from M/s V.K. Metal directly and the remaining quantity had been purchased through a registered dealer M/s Vardhman Sales Agency. Shri Amit Kumar Sharma, is the Accountant and authorized signatory of M/s Vardhman Sales Agency. The copper ingots claimed to have been procured from M/s V.K. Metal were claimed/shown to have been transported through M/s Kanpur Kashmir Roadways and M/s Upkar Goods Transport Co. Pvt. Ltd. 1.3 The matter was adjudicated by the Joint Commissioner vide order-in-original dated 01/6/11 by which the Adjudicating Authority (a) confirmed the Cenvat credit demand of Rs. 13,68,256/- against Namo under Rule 14 of the Cenvat Credit Rules, 2004 readwith proviso to Section 11A (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd M/s Upkar Goods Transport Co. Pvt. Ltd. and Shri J.P. Kaushik representing M/s Havells India Ltd., pleaded that so far as the duty demand on copper ingots manufactured by Namo Alloys on job works basis for Havells is concerned, during the period of dispute, Namo were receiving aluminium scrap from Havells under job work challans and were returning the ingots under job work challans and also under the invoices under Rule 11, that the invoices issued after February 2008 clearly show the payment of service tax on the job charges by Namo, that in this regard Namo had obtained service tax registration and were also filing ST-3 returns, that in view of this, the Department was aware of the activity of Namo and hence longer limitation period un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V.K. Metal without any manufacturing activity is not sustainable, that in view of this, the Department cannot allege that the appellant have taken Cenvat credit in respect of invoices of copper ingots from M/s V.K. Metal/Vardhman Sales Agency without receiving any material, that, therefore, the duty demand of Rs. 13,68,256/- is also not sustainable and for the same reason no penalty is imposable on Namo or on M/s Vardhman Sales Agency on this count, that as regards penalty on transporters M/s Kanpur Kashmir Roadways and M/s Upkar Goods Transport Co. Pvt. Ltd., the same would also not be sustainable and, hence, the transporters have also prima facie case in their favour. It was, therefore, pleaded that the requirement of pre-deposit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the invoices for copper ingots issued by M/s V.K. Metal and a registered dealer M/s Vardhman Sales Agency without actually supplying any material. Penalty of Rs. 6,39,000/- each on M/s Vardhman Sales Agency and its Accountant Shri Amit Kumar Sharma, penalty of Rs. 13,68,236/- on M/s V.K. Metal and penalty of Rs. 2,00,000/- each on M/s Kanpur Kashmir Roadways, Shri Neeraj Kumar Jain and on M/s Upkar Goods Transport Co. Pvt. Ltd. is on the same basis. However, since the Tribunal vide stay order dated 05/2/15 in respect of the appeal filed by M/s V.K. Metal Works, Jammu, against order-in-original passed by CCE, Jammu against them has waived the requirement of pre-deposit taking prima facie view that the allegation of issuing bogus invoices a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of Namo is manufacture,not service and the same would attract Central Excise duty and Namo would not be eligible for duty exemption under Notification No. 214/86-CE as Havells the principal manufacturer, were availing full duty exemption under Notification No. 50/03-CE in respect of the finished products manufactured and cleared by them. As regards the question of limitation there is no explanation as to why during period from January 2007 to January 2008 no duty was paid. In respect of period from February 2008 onward the appellant's explanation is that they exercised the bonafide belief that their activity is service and they paid service tax on the job charges, but in respect of period prior to February 2008 there is no explanation f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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