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TMI Blog2024 (12) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... ith utilization in as much as utilization of Cenvat Credit is for payment of excise duty, whereas in the present case admittedly excise duty was paid on receipt from the buyer and not through Cenvat Credit? (3) Whether, in the absence of prescribed method for reversal of Cenvat Credit, has the Tribunal erred in not accepting the method adopted by the Appellant. (4) Whether the impugned order is sustainable in upholding the equal penalty by the non-speaking and without reasons order on the issue of extended period of limitation, and consequently, penalty? (5) Whether a legitimate demand can be raised to recover the CENVAT Credit availed on inputs despite there being a reversal of the entire availed CENVAT Credit and no loss being suffered by the exchequer? (6) Whether penalty can be imposed as a matter of course in a mechanical manner without given reasons for such imposition of penalty? (7) Whether a patently and solely punitive action on part of the excise authorities in seeking to recover the CENVAT credit and imposing interest and penalty is justifiable and permissible despite a reversal of the entire amount of CENVAT Credit availed on inputs resulting in no loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner, the Appellant appealed to the Tribunal, raising various grounds. 5. The Tribunal, vide its order dated 27 February 2024, confirmed that the Order-in-Original, whereby Cenvat Credit of Rs. 5,63,66,047/- was disallowed and ordered to be recovered along with interest and penalty, was set aside. Insofar as other demands and penalties are concerned, the same were set aside. 6. Aggrieved by the aforesaid order of the Tribunal, the Appellant has preferred the present appeal on substantial questions of law referred to hereinabove. Question No. (1) to Question No. (7) deals with the confirmation by the Tribunal of the Order-in-Original dealing with Cenvat Credit of Rs. 5,63,66,047/- along with interest and penalty. Question No. (8) deals with the show cause notice dated 5 July 2014 being barred by limitation. 7. We have heard Mr. Vikram Nankani, learned Senior Advocate for the Appellant and Mr. Ram Ochani, learned counsel for the Respondent. 8. We first propose to decide Question No. (8) which deals with the show cause notice being barred by limitation. Section 35G (1) reads as under:- 35G Appeal to High Court (1) An appeal shall lie to the High Court from eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a ground because we are not aware as to whether the ground of limitation was argued before the Tribunal or not. The Tribunal's record must be given credence. The appeal Court does not lightly entertain any attacks against the Court's record. The proper mode is approaching the same court within a reasonable period, if not at the earliest. Even ground (h) only speaks that same was raised in the appeal, but it does not say that it was argued before the Tribunal. Admittedly, there is no discussion on the ground of limitation in the Tribunal's order and, therefore, in our view, since the issue of limitation does not arise from the present Tribunal's order dated 27 February 2024, same is to be rejected. 11. The Co-ordinate Bench of this Court in Commissioner of Income Tax vs. Tata Chemicals Ltd. (2002) 256 ITR 395 while dealing with Section 260A of the Income Tax Act on appeals to the High Court in paragraph 9 observed as under:- "9. As far as question (a) is concerned, it is not in dispute that this question was not raised before the Tribunal. Mr. Desai submitted before us that under section 260-A (6) (a) it is permissible for the High Court to determine any issue which is not dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific question being asked to the customers as to how they had taken Cenvat Credit when the goods were not being transported from the factory premises, they have categorically stated that the Cenvat Credit was taken based on invoices issued by the Appellant. The Appellant has rebutted none of these statements of the customers. In the statements recorded of the representatives of the Appellant they have also admitted to the said modus operandi adopted by them which has not been rebutted. 15. In the Order-in-Original dated 23 December 2014, the Adjudicating Authority has recorded the admission of the Appellant of the modus operandi adopted by them of issuing documents as if the goods were received in the factory. In contrast, in effect the goods never reached the factory, but were transported directly from the customs bonded warehouse. The said authority has also recorded that the Appellant has reversed the credit, but despite the said reversal, they had passed this inadmissible credit to their customers, and the Appellant has not produced any record to show permission to store Cenvat goods outside factory premises for availing the Cenvat credit. These findings of facts have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these charts have not been referred in the Tribunal's order. However, the same was brought to the notice of the Tribunal. In the absence of any such thing, we cannot accept the statement made by the learned counsel for the Appellant. In any case, the issue doesn't stop by reversal, but it extends to the invoices prepared to show that the goods have entered the factory and sold from the factory to the customers and thereby, the customers availed the Cenvat Credit, which is the issue which was required to be addressed which has not been addressed. Since admittedly, the modus operandi was proved to avail wrongly the Cenvat Credit and passed on to the customers and further there is no denial that the customers have availed the Cenvat Credit based on the documents prepared by the Appellant, which otherwise they have not been able to avail, these are questions of facts, and on such questions of facts, no substantial questions of law can be said to arise. Therefore, even after considering the chart, no interference with the factual findings is warranted. 19. The Tribunal in paragraphs 4 and 5 after giving its findings have concluded that the Cenvat Credit was intentionally wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X
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