2019 (5) TMI 1431 - AT - Central Excise

Tribunal overturns order, grants appeal with relief. Cenvat credit denial & penalty deemed unjustified.

M/s Fine Organics Versus CCE & ST- Chandigarh-ii

The Tribunal set aside the impugned order, allowing the appeal with consequential relief. The denial of Cenvat credit and imposition of a penalty were ... CENVAT credit - benefit under N/N. 56/2002-CE dated 14.11.2002 availed - it was alleged that J&K based units are not purchasing raw material, so there is no question of manufacture of finished goods by J&K based units, the goods manufactured were sold to UP based manufacturers who in turn partially exported their finished goods and partially sold in domestic market - demand confirmed on the grounds that the farmers are non existence ensuring non supply of raw material by commission agents to J&K based units and absence of evidence of manufacture by the Jammu based manufacturer. HELD THAT:- The investigation was not conducted at the end of the Jammu based manufacturer and whole case has been based on the investigation conducted at Commissioner Central Excise, Merrut-II. Without investigation, it cannot be held that the Jammu based manufacturer were not manufacturer during the impugned period. Moreover, the entries of vehicles at the toll barriers also certified that the movements of raw material and finished goods. Further during the period of investigation itself, the Jammu based manufacturer were allowed continue their activity by procuring inputs from UP based supplier and selling goods manufacturing to their buyer/appellant. During the course of investigation, itself shows that the allegation is only on the basis of the assumption and presumption, therefore, it cannot be held that the appellants were not manufactured the goods during the impugned period. The Jammu based manufacturer were manufacturer during the impugned period and paid the duty on the goods manufactured by them. Consequently, the cenvat credit can’t be denied to the recipient of goods M/s Fine Organics - the allegations against the appellants are based on assumption & presumption which is not sustainable - penalty also not imposable. Appeal allowed - decided in favor of appellant. Issues Involved:1. Denial of Cenvat credit to M/s Fine Organics.2. Imposition of penalty on the appellant.3. Allegation of non-existence of farmers and commission agents.4. Allegation of non-manufacture of goods by Jammu-based units.5. Investigation conducted only by the Commissioner of Central Excise, Meerut-II.6. Non-compliance with Section 9-D of the Central Excise Act.7. Validity of refund claims under Notification No. 56/2002-CE dated 14.11.2002.8. Extended period of limitation for issuing show cause notice.Detailed Analysis:1. Denial of Cenvat Credit to M/s Fine Organics:The appellant contested the denial of Cenvat credit on the grounds that the investigation was not conducted at the premises of the Jammu-based manufacturers. The appellant argued that the transportation of raw materials and finished goods was documented and verified by toll posts, proving the movement of goods. The Tribunal noted that the investigation by the Commissioner of Central Excise, Meerut-II, was insufficient to conclude that the Jammu-based units were not manufacturing the goods. The Tribunal found that the entries at toll barriers and the continued manufacturing activities during the investigation period supported the appellant's case.2. Imposition of Penalty on the Appellant:The Tribunal held that since the denial of Cenvat credit was based on assumptions and presumptions without concrete evidence, the imposition of a penalty on the appellant was not justified. The Tribunal emphasized that penalties cannot be imposed when the foundational allegations are not substantiated with adequate proof.3. Allegation of Non-Existence of Farmers and Commission Agents:The investigation by the Meerut Commissionerate alleged that the farmers and commission agents involved were non-existent, leading to the conclusion that the raw materials were not supplied to the Jammu-based units. However, the Tribunal found that there was no direct investigation at the premises of the Jammu-based manufacturers to verify these claims. The Tribunal also noted that the movement of trucks carrying raw materials and finished goods was documented, contradicting the allegations.4. Allegation of Non-Manufacture of Goods by Jammu-Based Units:The Tribunal referred to the report from the Jurisdictional Commissioner, which indicated that the Jammu-based units were operational and manufacturing goods. The Tribunal also cited a previous case (Nanda Mint and Pine Chemicals Ltd.) where similar allegations were dismissed, and it was established that the units were manufacturing goods. The Tribunal concluded that the allegations of non-manufacture were not supported by substantial evidence.5. Investigation Conducted Only by the Commissioner of Central Excise, Meerut-II:The Tribunal criticized the reliance on the investigation conducted solely by the Commissioner of Central Excise, Meerut-II, without any direct investigation at the Jammu-based units. The Tribunal emphasized that a thorough investigation at the premises of the Jammu-based manufacturers was necessary to substantiate the allegations.6. Non-Compliance with Section 9-D of the Central Excise Act:The appellant argued that the procedure under Section 9-D of the Central Excise Act was not followed, as the witnesses were not called for examination and cross-examination. The Tribunal noted this procedural lapse, indicating that the adjudicating authority did not comply with the required legal procedures, further weakening the case against the appellant.7. Validity of Refund Claims under Notification No. 56/2002-CE dated 14.11.2002:The appellant argued that the refund claims sanctioned under Notification No. 56/2002-CE were not challenged by the Revenue, and thus, the duty could not be demanded from the Jammu-based manufacturers. The Tribunal agreed, citing precedents that supported the appellant's position and confirming that the refund claims were valid and justified.8. Extended Period of Limitation for Issuing Show Cause Notice:The appellant contested the invocation of the extended period of limitation for issuing the show cause notice. The Tribunal found that the reliance on assumptions and lack of concrete evidence did not justify the extended period of limitation. Consequently, the Tribunal held that the show cause notice was not sustainable.Conclusion:The Tribunal set aside the impugned order, allowing the appeal with consequential relief. The Tribunal concluded that the denial of Cenvat credit and the imposition of a penalty were based on assumptions and presumptions without substantial evidence. The Tribunal emphasized the need for a thorough investigation and adherence to legal procedures, ultimately ruling in favor of the appellant.