Cubex Tubings Ltd. Vs Commissioner of Customs, Central Excise Central Excise and Service Tax (CESTAT Hyderabad)
The issue in dispute is whether the appellant assessee is entitled to CENVAT Credit on the disputed eight invoices or otherwise. It is the case of the Revenue that no material was received by the appellant against these invoices and only invoices were received and CENVAT Credit has been taken. It is the case of the appellant that they have indeed received the material against these invoices and have also accounted for them in their stock register and in their production records. Therefore, they are entitled for the CENVAT Credit and the entire show cause notice is without any merits.
The only evidence against the appellant in the statement of Shri R.S. Elanjeran, Proprietor of M/s Swastik Insulators, on 31.03.2008 and the fact that one of the truck numbers on which the goods were supposed to have been received was indeed a motorcycle. It was perfectly possible that there was a typographical error in mentioning the vehicle number. As the Department had committed an error in not verifying the vehicle No. AP 07 TF 9777, but had instead verified the vehicle No. AP 07 TT 9777, it is an equally possible human failure that the person preparing the documents to have erred in mentioning the vehicle number. Under these circumstances, I find the assessee cannot be denied of CENVAT Credit on these two invoices.
FULL TEXT OF THE CESTAT JUDGEMENT
1. All these appeals arise out of same impugned order and hence are being disposed of together. Appeal No. E/895/2012 has been filed by the assessee M/s Cubex Tubings Limited and the remaining appeals are filed by individuals working with the assessee, challenging the personal penalties imposed upon them. Hence, all these appeals are being disposed of
2. Heard both sides and perused the records.
3. The appellants are manufacturerers of copper tubes, copper Rods, Copper Strips, Copper Flats, Brass Tubes, Cupro Nickel Pipes and are registered with the Central Excise Department and have been paying excise duty. They also avail CENVAT Credit on the inputs which they receive from their suppliers. The Directorate General of Central Excise Intelligence (DGCEI) of the Department of Revenue investigated the appellant and several others and came to the conclusion that the appellant had wrongly availed CENVAT Credit on eight invoices. It is the allegation that the appellant has not received any material on these invoices and has only received invoices and have taken CENVAT Credit on them. Accordingly a show cause notice was issued to the appellant assessee seeking to deny CENVAT Credit of Rs. 22,27,578/- against seven invoices detailed in the Annexure D-1 to the show cause notice and recover the same under Rule 14 of CCR 2004 read with sub section (1) of Section 11A of the Central Excise Act, 1944 and the proviso thereto. It also proposed to deny and recover an amount of Rs. 6,01,183/- taken as CENVAT Credit on the strength of one invoice listed in Annexure D-2 under the same provisions. Interest was also demanded under section 11 AB and penalty was proposed to be imposed under section 11AC of the Central Excise Act, 1944 and also under Rule 25 of Central Excise Rules, 2002. It was also proposed to impose penalties upon Shri P.R. Bhandari, Managing Director, Shri U.M. Bhandari, Executive Director and Sri Surendra Prakash Bhandari, Chief Executive of the assessee firm under Rule 26 of Central Excise Rules, 2002.
4. After following due process the Ld. Additional Commissioner by her Order-in-Original No. 13/2011(C.E.), dated 29.03.2011 confirmed the demands along with interest and imposed penalties as proposed in the show cause notice. Aggrieved, the appellants appealed to the first appellate authority who, by the impugned order, upheld the order of the lower authority and rejected the appeals. Hence these appeals.
5. The issue in dispute is whether the appellant assessee is entitled to CENVAT Credit on the disputed eight invoices or otherwise. It is the case of the Revenue that no material was received by the appellant against these invoices and only invoices were received and CENVAT Credit has been taken. It is the case of the appellant that they have indeed received the material against these invoices and have also accounted for them in their stock register and in their production records. Therefore, they are entitled for the CENVAT Credit and the entire show cause notice is without any merits.
6. I now proceed to examine the disputed eight invoices and the evidence produced by the Revenue to deny CENVAT Credit and the evidence produced by the appellant to claim that they are entitled to the CENVAT credit. The eight invoices in dispute are as follows:
