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TMI Blog2023 (5) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... hout delivery of goods specified therein or issues any other document or abets in making such document on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made thereunder like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater. From the perusal of the evidences collected in the form of documents and statement of concerned persons it is clear that the assessee was not in existence at the premises declared in their Central Excise Registration certificate but they managed to obtain the registration on the basis of forged documents for manufacturing Polyester Grey Fabric . They neither purchased any polyester yarn nor ever manufactured any polyester grey fabric. The broker i.e. Mr. Sajjan Tibrewal managed to purchase polyester yarn from the yarn mills in the name of the assessee and supplied invoices to the assessee without accompanying the goods on the basis of which the assessee managed to avail inadmissible Cenvat credit - the cheques were deposited by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Tibrewal is concerned and the same is set aside qua the appellant Pankaj Hari Pansari by allowing his appeal. Appeal allowed. - Excise Appeal No. 1997 of 2012 , Excise Appeal No. 1998 of 2012 , Excise Appeal No. 1999 of 2012 - - - Dated:- 12-5-2023 - HON BLE MR. AJAY SHARMA, MEMBER (JUDICIAL) And HON BLE MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri J.M. Dayma, Advocate for the appellant Shri Xavier Mascarenhas, Supdt (AR) for the respondent ORDER Per : AJAY SHARMA These appeals have been filed by the Appellants-brokers assailing the order dated 10.10.2012 passed by the Commissioner, C.Ex., Cus Service Tax, Nasik by which the learned Commissioner confirmed the demand raised in the show cause notice dated 21.11.2011 against M/s. Surabhi Corporation for availing ineligible Cenvat credit in contravention of various provisions of Cenvat Credit Rules, 2004 r/w. Section 11A(4) of Central Excise Act, 1944 with applicable interest penalty and separate penalty was also imposed on the appellants herein i.e. brokers under Rule 26, Central Excise Rules, 2002 for their acts of omission(s) and commission(s). We are not aware of any appeal filed by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel placed reliance on the decision of the Larger Bench of the Tribunal in the matter of Steel Tubes of India Ltd. vs. CCE, Indore; 2007(217) ELT 506 (Tri.-LB). According to learned counsel, the appellants were not aware about the mode of disposal of yarns by the assessee. He also submits that the appellants have not prepared the invoices nor they have influenced or abetted or asked the yarn manufacturers to prepare the invoices with oblique motives to pass on the ineligible Cenvat credit nor any such allegation has been made in the show cause notice against them. Learned counsel further submits that the statement of appellant Sajjan Mohan Tibrewal was recorded by the DGCEI officers under duress and coercion and that while taking the statements it was told to the said appellant that this will be used to nail the assessee and he will not be harassed by the department. He also submits that the appellants have no concern with the assessee. Per contra learned Authorised Representative appearing on behalf of Revenue submits that the appellants being brokers have played pivotal role in diverting the polyester yarn, the principal input required in manufacture of Polyester Grey fabr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, we find same to be not correct as a specific allegation of abetment has been made against the appellants in the show cause. Now we have to see whether their actions made them liable for penalty under Rule 26(2) ibid. The said clause clearly mentions that any person who issues or abets in making an excise duty invoice without delivery of goods specified therein or issues any other document or abets in making such document on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made thereunder like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater. 6. It is the specific case of the department against the appellants that being brokers they managed to procured the raw material i.e. polyester yarn from the manufacturers in the name of assessee and diverted these goods in the open market and supplied the invoices to the assessee on the basis of which the assessee has availed ineligible Cenvat credit. The case in hand is mainly facts based. The case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies to send yarn to Malegaon; that on the invoices the name and address of the purchasers were mentioned; that after receiving the yarn through the transporter, the material was delivered to the concerned parties as mentioned on the invoices; that though the name of the broker was not appearing on the invoices, but they were receiving the commission. Shri Tibrewal further stated that Shri Rajesh Shah approached him in the month of August, 2006 and requested for giving invoices in the name of M/s Shah Fabrics and M/s Surabhi Corporation without supply of yarn from the Yarn manufacturing companies; that Shri Shah promised to give C-forms for sales tax exemption; that to save the sales tax against C-forms, he agreed to give invoices in the name of M/s Shah Fabrics and M/s Surabhi Corporation, without supplying yarn; that Shri Rajesh Shah placed many orders for yarn in the name of M/s Shah Fabrics and M/s Surabhi Corporation during the period from November 2006 to December 2007; that as per these orders, he received yarn through M/s Suhel Roadlines and M/s Supreme Freights and Carriers; that after receiving the Yarns along with the invoices (meant for the transporters) in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Surabhi Corporation; that the person who was coming to take delivery of goods for M/s Surabhi Corporation was bringing the cheques in the name of other firms or in the name of financial companies and not in the name of M/s Surabhi Corporation; that he has not kept detailed information of the person(s), who used to come to take delivery of yarn for M/s Surabhi Corporation. 8. It is relevant to mention that the appellant-Mr. Sajjan Mohan Tibrewal, vide his statement dated 8.9.2008 admitted his guilt. He tried to retract it belatedly while replying the show cause, by stating that the same was recorded under duress and coercion as he was told by DGCEI offices that the same would be used only to trap the assessee and that he would not be harassed by the department. The reasoning given by the appellant Sajjan Mohan Tibrewal in his so-called retraction (which has not filed with the appeal for perusal) does not seems to be convincing and we are of the view that the same has been rightly rejected by the authority below being afterthought. He would have asked for the cross-examination of the transporter or the banking company who have named him specifically in their respective statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned persons it is clear that the assessee was not in existence at the premises declared in their Central Excise Registration certificate but they managed to obtain the registration on the basis of forged documents for manufacturing Polyester Grey Fabric . They neither purchased any polyester yarn nor ever manufactured any polyester grey fabric. The broker i.e. Mr. Sajjan Tibrewal managed to purchase polyester yarn from the yarn mills in the name of the assessee and supplied invoices to the assessee without accompanying the goods on the basis of which the assessee managed to avail inadmissible Cenvat credit. He was selling the polyester yarn, which he purchased from the yarn mills, to other power loom owners/ weavers at Malegaon against the payment in the name of third party through crossed cheques. Thereafter the cheques were deposited by him with a banking company M/s. Advance Finstock P. Ltd., Malegaon, who after taking commission @0.05%, were issuing cheques in the name of the assessee, the photocopies of which were also found in the records of the assessee. 11. From the statements it has been proved beyond any doubt that the brokers were instrumental in availing of ineli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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