SUNLAND ALLOYS AND ORS. Vs. C.C.E. & S.T.
LAWS(CE)-2015-7-12
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on July 23,2015

Sunland Alloys And Ors. Appellant
VERSUS
C.C.E. And S.T. Respondents


Referred Judgements :-

RHINO RUBBERS PVT LTD VS COMMISSIONER OF CENTRAL EXCISE,BANGALORE [REFERRED TO]
EMMTEX SYNTHETICS LTD VS COMMISSIONER OF CENTRAL EXCISE,NEW DELHI [REFERRED TO]
GOPAL INDUSTRY LTD VS CCE INDORE [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE,CHANDIGARH VS NEEPAZ STEELS LTD [REFERRED TO]
RA CASTINGS PVT LTD VS COMMISSIONER OF CENTRAL EXCISE,MEERUT -I [REFERRED TO]
JOHNSON MATTHEY CHEM INDIA PVT LTD VS COMMISSIONER OF CENTRAL EXCISE,BELAPUR [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE,LUDHIANA VS PJ INTERNATIONAL LTD [REFERRED TO]
AHMEDNAGAR ROLLING HILLS PVT LTD VS CCE AURANGABAD [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE,DAMAN VS DHAKAD METAL CORPORATION [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE,CHANDIGARH VS ASHOKA STEEL CORPORATION [REFERRED TO]
T G L POSHAK CORPORATION VS. COMMISSIONER OF C EX [REFERRED TO]
BASUDEV GARG VS. COMMISSIONER OF CUSTOMS [REFERRED TO]
SHALINI STEELS PVT. LTD. VS. COMMISSIONER OF C. EX., HYDERABAD [REFERRED TO]
SAKEEN ALLOYS PVT. LTD. VS. COMMISSIONER OF C. EX., AHMEDABAD [REFERRED TO]
COROMANDEL FERTILIZERS LTD. VS. COMMR. OF C. EX. (A), VISAKHAPATNAM-IV [REFERRED TO]
COMMISSIONER VS. MOTABHAI IRON AND STEEL INDUSTRIES [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE VS. RAJAGURU SPINNING MILLS (P) LTD. [REFERRED TO]


JUDGEMENT

H.K.THAKUR - (1.)THESE appeals have been filed by the appellants against OIA No. SA/173 -175/VAPI/2011 dated 11/11/2011 passed by Commissioner (Appeals), VAPI under which OIO No. 08/JC/OA.VAPI/2011 -2012 dated 18/08/2011 passed by Adjudicating Authority has been upheld by the first appellate authority. Under OIO dated 18/08/2011. Adjudicating Authority disallowed a credit of Rs. 16,35,297/ - to the main appellant M/s. Sunland Alloys works, Silvassa under Rule 14 of the Cenvat Credit Rules 2004 (CCR), along with interest, and equivalent penalty was also imposed. Other two appeals have been filed by Shri Pravin Kumar, Partner and Shri Shivraj Singhal, Authorised Representative and Excise -in -charge of the main appellant with respect to penalties imposed under Rule -26 of the Central Excise Rules 2002 and upheld by the first appellate authority.
(2.)Shri Alok Barthwal (Advocate) appearing on behalf of the appellants argued that main appellant is manufacturing Aluminium, Brass and Copper ingots from raw materials Scrap of Aluminium, Brass and Copper. That main appellant is importing scrap and availing Cenvat Credit of these inputs used in the manufacture of final products in its factory situated at silvassa. That a case was booked against the main appellant and others on the grounds that inputs imported in certain containers were diverted elsewhere instead of taking these inputs to their factory and only Cenvat Credit was taken on the basis of documents Bills of entry without receipt of inputs. That M/s. Pankaj Shipping and Transport Co. Ltd. (PSTC) were engaged by the main appellant as their CHA and transporter with respect to consignments of scrap imported at JNPT and their transport to silvassa. Revenue has based their case on the basis of Daily Loading Report prepared by PSTC's Loading Supervisor and the monthly loading report prepared vehicle wise by the driver of the vehicle. The statements of employees of PSTC and Manager -cum -Authority Signatory of main appellant were recorded to suggest that imported scrap was only transported upto Bhivandi by PSTC and after there no transportation details were available with the main appellant or PSTC that how inputs were taken to the factory premises of the appellant. That Revenue has also made its case on the logic that Cenvat Credit on imported Scrap was taken on an earlier date at the factory from dates of containers reaching back in Mumbai.
It is the case of the main appellant that only a bald statement is made by the Revenue based on the Daily Loading Report/Monthly Loading Report and the statement of Shri Rajeshwar Prasad R Dubey Proprietor of PSTC. That no investigation has been done from the drivers of the vehicle as to how and where the imported goods were delivered/unloaded. That no cross examination of the witnesses, whose statements were relied upon has been made available and that in the absence of such denial of Cross Examination the evidentiary value of the statements is lost. That in statement dated 24/09/2009 of Shri Pravin Kumar A. Ranka, Partner of the main appellant, has stated that imported goods were received, recorded in the statutory records and used in the manufacture of finished goods. It is the case of the appellant that Credit was taken on the basis of Bills of entry and there could be a difference in the date of receipt of goods and credit taken because sometimes duty paying document are received late. It was also argued by the Learned Advocate that no alternative procurement of raw materials by the main appellant has been brought on record. It was strongly argued by the Learned Advocate that a case cannot be made on the basis of few statements, especially when Cross Examination of the relied upon witnesses was not allowed. That no Seizure of diverted inputs or Seizure of any cash was affected in any of the premises searched.

2.1 Learned Advocate relied upon the following Case Laws in support of his various arguments: -

(i) Commissioner Vs. Motabhai Iron and Steel Industries [ : 2015 (316) E.L.T. 374 (Guj.)]

(ii) Commissioner of Central Excise, Ludhiana Vs. Peejay International Ltd. [2010 (255) E.L.T. 418 (Tri -Del.)]

(iii) Commissioner of Central Excise, Chandigarh Vs. Neepaz Steels Ltd. -, 2008 (230) E.L.T. 218 (P&H)

(iv) Commissioner of Central Excise, Daman Vs. Dhakad Metal Corporation - : 2012 (285) E.L.T. 382 (Tri -Ahmd.)

(v) R.A. Castings Pvt. Ltd. Vs. Commissioner of Central Excise, Meerut -I, 2009 (237) E.L.T. 674 (Tri -Del.)

(vi) Rhino Rubbers Pvt. Ltd. Vs. Commissioner of Central Excise, Bangalore : 996 (85) E.L.T. 260 (Tri)

(vii) Commissioner of Central Excise, Coimbatore Vs. Rajguru Spinning Mills : 2009 (243) E.L.T. 280 (Tri. -Chennai)

(viii) Sakeen Alloys Pvt. Ltd. Vs. Commissioner of Central Excise, Ahmedabad - : 2013 (296) E.L.T. 392 (Tri. -Ahmd)

(ix) Emmtex Synthetics Ltd. Vs. Commissioner of Central Excise, New Delhi, 2002 (147) E.L.T. 649 (Tri -Del)

(x) TGL Poshak Corporation Vs. Commissioner of Central Excise, Hyderabad : 2002 (140) E.L.T. 187 (Tri.)

(xi) Basudev Garg Vs. Commissioner of Customs - : 2013 (294) E.L.T. (353) Del.

(xii) Johnson Matthey Chem. India Pvt. Ltd. Vs. Commissioner of Central Excise, Belapur -2009 (240) E.L.T. 673

(xiii) Coromandel Fertilizer Ltd. Vs. Commissioner of Central Excise, Visakhapatnam -IV - : 2009 (239) E.L.T. 99 (Tri.)

(xiv) Commissioner of Central Excise, Chandigarh Vs. Ashoka Steel Corporation - : 2014 (306) E.L.T. 666 (Tri. -Del.)

(3.)SHRI L. Patra (Authorised Representative) appearing on behalf of the Revenue argued that Proprietor of PSTC has clearly stated that imported goods have not reached the factory of the main appellant. That no documentary evidence has been made available to the department as to how inputs have reached appellant's factory. Learned Authorised Representative made the bench to go through para -9.11(ii) of OIO dated 18/08/2011 to support his argument. Learned Authorised Representative also made the bench to go through para -9.6 of the OIO to highlight that containers provided by M/s. J.M. Baxi and M/s. NYK Link have been confirmed to have received empty containers after unloading of imported scrap and that the date of returned to Mumbai prior to the taking Cenvat Credit by the main appellant. Learned Authorised Representative, therefore, strongly defended the orders passed by the lower authorities. He relied upon the following Case Laws in Support of his arguments: -
(i) Ahmednagar Rolling Mills Pvt. Ltd. Vs. CCE, Aurangabad [ : 2014 (300) E.L.T. 199 (Tri -Mumbai)]

(ii) Shalini Steels Pvt. Ltd. Vs. CCE, Hyderabad [ : 2010 (258) E.L.T. 545 (Tri -Bangalore)]

(iii) Debu Saha Vs. Collector of Customs [ : 1990 (48) E.L.T. 302

(Tribunal)]

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