TUBEWELL WORKSHOP & GENERAL INDUSTRIES Vs. COMMR. OF C. EX.
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
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Ashok Jindal, Member (J) -
(1.)THE appellant is in appeal against the impugned order wherein Cenvat Credit amounting to Rs. 19,63,779/ - has been denied to the appellant along with interest and a penalty of the equivalent amount has been imposed on them under Rule 15 of the Cenvat Credit Rules, 2004. The brief facts of the case are that the appellant is manufacturer of parts of excavator, loader machines and press machines. An audit was conducted in the factory of the appellant on 8 -7 -2008 for the period 2005 -06 and 2006 -07. It was found that the appellant has procured goods from registered dealers during the impugned period under the cover of challans issued by the registered dealer and later on invoices were issued thereof. The invoices were compared with the challans and it was found that in four cases quantity corresponding to invoices and challan does not match. In 16 cases it was found that date of challan and invoices differs and in six cases vehicle numbers also differs. Therefore, a show cause notice was issued by invoking extended period of limitation to deny the Cenvat Credit on the above discrepancies. The matter was adjudicated and demand proposed on the show cause notice were confirmed and also the adjudication order was confirmed. Thereafter, appellant filed the appeal before this Tribunal.
(2.)THE ld. Counsel for the appellant submits that the discrepancies pointed out during the course of the audit has been explained by the appellant explaining that in the case of difference of dates it is submitted that the goods were cleared under the challan and thereafter invoice is being issued. Therefore, invoice may be issued on the same day or the very next day. For the difference in quantity he submits that on the same day two invoices have been issued but quantity of one invoice has been taken. If the quantity of both the invoices is taken then there is no difference in quantity. For vehicle number he explained that if the goods have been cleared on challan in the late evening the goods have to go for weightment and if there is a long queue then goods have to be shifted to another vehicle as the supplier of the vehicle needs vehicle under which goods have been cleared from the godown of the registered dealer. In those cases there is a difference in vehicle number. But there is no allegation against the appellant that they have not received the goods in their factory. It is further submitted that no investigation was conducted at the end of the supplier of the goods and the transporters who supplied the goods. He further submitted that as per the trade practice in their area, the goods are required to be cleared on the basis of challan which is authenticated document as per the Haryana Sales Tax authorities and after receipt of the good proper invoice is to be issued. It is not in dispute that against these goods appellant has not paid the amount and these goods have been used by the appellant in the manufacturing of the final product. Therefore, credit cannot be denied. He also submits that to deny the Cenvat Credit the adjudicating authority has relied on the decision of this Tribunal in the case of Baldva Textiles Pvt. Ltd. v. C.C.E., Jaipur - : 2010 (253) E.L.T. 90 (Tri. -Delhi). He submits that facts of this case are different from the facts of the case which has been relied on. Therefore, Cenvat credit cannot be denied. In these circumstances, he prayed that impugned order be set aside.
On the other hand ld. Commissioner AR opposes the contention of the ld. Counsel and submits that it is a fact on record that there was a discrepancy of weight, dates and vehicle numbers. She further submits that as per Rule 11 of the Central Excise Rules, 2002 the goods are to be cleared against the invoice and in this case admittedly goods have not been received by the appellant against the challan. Therefore, Cenvat credit has been rightly denied. She further drew my attention for invoking the extended period of limitation and submits that in the show cause notice there is a clear allegation against the appellant that with an intention to evade payment of duty to take inadmissible credit, they have not disclosed fact of availment of credit to the department. She further submits that the supplier of the goods or the transporter were not required to be made co -noticee in this case. Therefore, impugned order is required to be upheld.
(3.)HEARD the parties. Considered the submissions.
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