2025 (11) TMI 1691 - AT - Central Excise

Appeal allowed: CENVAT credit on M.S. scrap upheld; no proof of fake invoices or bogus transactions

M/s. Hindusthan Engineering & Industries Limited, Shri Bharat Ratna Jhunjhunwala, Shri Debesh Ranjan Ghosal, Shri Subrata Dutta, Shri Manoj Agarwal, Shri Dipak Kumar Nathani, Shri Anish Kumar Goenka, Shri Raj Kumar Agarwal Versus Commissioner of Central Excise, Kolkata

CESTAT Kolkata allowed the appeal, setting aside the impugned order denying CENVAT credit and imposing penalties. The Tribunal held that the appellant had ... Availment of irregular CENVAT Credit on the basis of the alleged fictious invoice - M.S. scrap - no clear and proper system in the purchase of M.S. Scrap from the vendors and there was no system to verify the authenticity of the source of the said vendors/suppliers of M.S. Scrap - invocation of extended period of limitation - HELD THAT:- It is found that during the impugned period, status of the dealers were being shown as ‘active’ and therefore, it was not in the knowledge of the appellant-company that these were non-existent or that alert circulars had been issued against the said dealers. Moreover, in the case of M/s. Ganapati Udyog and M/s. IRO Steel Corporation, the alert Circulars were issued after the period of transactions made by the appellants from such dealers. As status of these dealers was shown as ‘active’ and all invoices accompanying the goods showed the details in terms of Rule 9 of the CENVAT Credit Rules, 2004 as required for availment of CENVAT Credit, the appellant-company took the CENVAT Credit on receipt of the goods in question on the basis of these invoices. In all, more than 1600 consignments were received by the appellant. Moreover, it is not the case of the Revenue that the appellant-company had diverted the said inputs received against these invoices. In fact, the appellant has received the goods against these invoices and the same have been used in the manufacture of their final product, on which the appellant have paid duty. If the allegation of the Revenue, that these dealers have issued only Cenvatable invoices to the appellant and not goods, is taken to be true, then from where has such a huge quantity of goods been received by the appellant for manufacture of their final product? The said evidence is missing from the course of investigation itself. It is indeed a fact that the appellant-company’s outward clearances upon payment of duty to the Indian Railways have not been doubted and such being an admitted fact, there are considerable force in the appellant-company’s submissions that the revenue failed to demonstrate alternate procurement of inputs, otherwise than what had been reflected in its books as well as in its statutory documents. An allegation has also been made as to non-receipt of the goods on the ground that the Proprietor of M/s. Ganapati Udyog died on 12.04.2010 and even after his death, transactions were found to continue, as recorded in the appellant’s records - If the proprietor of a firm has died, that does not mean that the firm is non-existent. In fact, in this case, the said firm was taken over by one Shri Debesh Ranjan Ghosal, who was issuing invoices to the appellant-company against the goods in question delivered to them and who happened to be the sonin-law of the deceased proprietor, Amal Kumar Ghosal. That apart, persons who were granted registrations by the Department as dealers on the basis of proper documents cannot be termed as fictitious or non-existent. The process of registration includes physical verification by Departmental officers and such registration would have been granted after verification of physical existence. Such would be the case whether the person getting registered is a dealer or a manufacturer. Another allegation made against the appellant-company is that the appellants have paid all the amounts to the dealers through account payee cheques, but from the said cheques deposited with the bank, substantial amount had been withdrawn in cash - It may be that a substantial amount has been withdrawn by the dealers, in cash, but that does not mean that the said amount has been paid to the appellant no. 1 by these dealers and no evidence to that effect has been brought on record. Further, it is a fact on record that the appellant had received the goods, which had been entered in their statutory records, and had shown in their regular returns the fact of availment of CENVAT Credit. In these circumstances, the burden is on the Revenue to prove beyond doubt that these transactions were fake and that the appellants had procured the said inputs from other sources, to deny the CENVAT Credit availed by the appellant no. 1 on the strength of these invoices. However, the Revenue has not done any exercise to this extent. It is found that the case of the Revenue is that the manufacturers and traders / dealers were non-existent during the impugned period. However, it is a fact on record that that M/s. Ganapati Udyog, M/s. Green Rose Enterprise, M/s. IRO Steel Corporation and M/s. Ganga Sales Corporation were having an ‘active’ status in the portal of the respondents. Therefore, on that ground, it cannot be alleged that the appellant has received only invoices and not goods. The appellant no. 1 has correctly availed CENVAT Credit on the strength of the invoices issued to them by the traders / dealers, namely, M/s. Ganapati Udyog, Howrah (Proprietor: Shri Amal Kumar Ghosal), M/s. IRO Steel Corporation, Howrah (Proprietor: Shri Debesh Ranjan Ghosal) and M/s. Green Rose Enterprise, Howrah (Proprietor: Shri Manoj Kumar Agarwal). Accordingly, the denial of CENVAT Credit to the appellant no. 1 is not sustainable and the appellant no. 1 is entitled to take the CENVAT Credit - In these circumstances, as the appellant no.1/appellant-company is entitled to take the CENVAT Credit, consequently, no proceedings are sustainable against the co-appellants. Accordingly, the penalties imposed all the appellants are dropped. The impugned order is set aside - appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED (1) Whether CENVAT credit on M.S. scrap taken on the strength of invoices issued by three registered dealers was inadmissible on the allegation that the dealers and their supplier-manufacturers were non-existent/fictitious and had issued only 'fake' invoices without supply of goods. (2) Whether the evidence on record (statements of company personnel, weighment slips, transporters' statements, bank transactions, alert circulars, etc.) established that the appellant had not physically received the duty-paid inputs corresponding to the disputed invoices. (3) Whether, under the CENVAT Credit Rules, 2004 (particularly Rule 9 and Rule 15 as amended) the burden lay on the recipient-manufacturer to establish actual duty payment by the dealers/manufacturers, and whether failure of upstream suppliers to pay duty could justify denial of credit to a bona fide recipient. (4) Consequentially, whether penalties on the recipient-manufacturer and on the co-appellants under Rule 15 of the CENVAT Credit Rules, 2004 and Rule 26 of the Central Excise Rules, 2002 were sustainable. 2. ISSUE-WISE DETAILED ANALYSIS Issue (1): Alleged fictitious/non-existent dealers/manufacturers and denial of CENVAT credit Legal framework discussed (a) Rule 9(2) and (5) of the CENVAT Credit Rules, 2004 (as amended w.e.f. 01.03.2007) regarding documents and burden of proof for admissibility of credit. (b) Rule 15 of the CENVAT Credit Rules, 2004 (pre- and post-01.03.2007) concerning confiscation/penalty and the (deleted) requirement of 'reasonable steps' to ensure duty-paid character of inputs. Interpretation and reasoning (1) The Tribunal noted that the appellant took credit on invoices issued by three entities registered as dealers with Central Excise, showing two registered manufacturers as suppliers. Throughout the relevant period, the three dealers and the key manufacturer Ganga Sales Corporation appeared as 'active' on the Department's own NSDL/ACES portal, and the dealers held valid Central Excise registration granted after departmental physical verification. (2) The Tribunal held that persons/entities who have been granted registration after due verification and whose registrations continued to show 'active' status cannot lightly be treated as 'fictitious' or 'non-existent' for the purpose of denying credit to a purchaser who relied on that status and on facially valid invoices. The dealers and their proprietors appeared before the Department, were issued show cause notice, were heard, and were penalised; they also pursued appeals. This conduct contradicted the Department's allegation that they were wholly non-existent. (3) The Tribunal found the Department's stand ambivalent: for purposes of issuing registrations, show cause notices, conducting hearings, and imposing penalties, the entities were treated as existing concerns; but for the purpose of denying credit to the appellant, they were treated as non-existent. Such internally inconsistent treatment was held unsustainable. (4) As regards Ganga Sales Corporation, the Tribunal observed serious inconsistencies in the Department's own record: (i) a letter claimed that registration was surrendered in 2005; (ii) the Commissioner referred to surrender in 2007; yet (iii) an alert circular dated 02.07.2009 described Ganga Sales Corporation as a registered manufacturer still operating and issuing invoices. Further, Ganga Sales Corporation and its proprietor, though repeatedly named as a central figure by multiple witnesses, were not made noticees. This non-joinder, coupled with inconsistent departmental assertions about its existence and registration, was held to vitiate the factual foundation of the 'fake manufacturer' allegation. (5) The Tribunal accepted that even after the death of the original proprietor of one dealer (Ganapati), the business was continued by his son-in-law, who appeared before the Department. Death of a proprietor by itself did not render the firm fictitious or negate the existence of the dealer or the validity of its registration. (6) The Tribunal relied on binding and persuasive precedents holding that a bona fide buyer who receives inputs under valid invoices from registered dealers/manufacturers and pays by account-payee cheques is entitled to assume that duty has been or will be paid, and the law does not require him to verify the suppliers' internal accounts or actual duty payment (citing, inter alia, decisions in Tata Motors Ltd., Juhi Alloys Ltd., Surinder Steel Rolling Mills, D.P. Singh and Raghuveer Concast). (7) On this legal and factual basis, the Tribunal held that the mere allegation (or even proof) that dealers or manufacturers had indulged in irregularities or that they did not discharge duty, could not, absent proof of collusion or knowledge, justify denial of credit to a recipient whose transactions and documentation were bona fide and in conformity with Rule 9. Conclusions on Issue (1) (a) The three dealers and the two manufacturers could not be treated as wholly fictitious/non-existent so as to nullify the dealers' invoices relied upon by the appellant. (b) The Tribunal held that CENVAT credit could not be denied to the appellant solely because the Department alleged non-existence or fraud on the part of upstream dealers/manufacturers, in the absence of proved complicity of the appellant. (c) The Department's internally inconsistent and procedurally flawed approach (including failure to proceed against Ganga Sales Corporation and its proprietor) undermined the allegation that the input invoices were 'fake' for purposes of the appellant's credit. Issue (2): Whether non-receipt of goods or 'paper transactions' stood established Interpretation and reasoning (1) The Tribunal meticulously evaluated the statements of all key managerial personnel and officers of the appellant (purchase, accounts, administration and material management). It found that: * They consistently stated that the M.S. scrap covered by the disputed invoices was physically received at the factory under cover of challans and dealer excise invoices, entered in stores and statutory records, and consumed in the manufacture of duty-paid final products. * At no point did any responsible company official admit non-receipt of goods or participation in any scheme to avail fake credit. (2) The Tribunal posed a specific query to the Department during hearing whether any statement of the appellant's officers contained an admission of availing credit without receipt of goods; no such admission was shown. On independent scrutiny of the statements, the Tribunal confirmed the absence of any such admission. (3) The Department's allegation that the appellant received 'bazar scrap' instead of cenvatable inputs rested heavily on: * Certain weighment slips where supplier names had been overwritten; and * Isolated discrepancies in transport documents (timestamps, vehicle numbers, loading capacity), and bank withdrawals by dealers. (4) As to weighment slips, the Tribunal accepted the detailed explanation of the appellant's officer that: * Initial entries on weighment slips reflected supplier names as supplied orally by truck drivers at the gate; * On reconciliation with accompanying invoices and documents from the registered dealers, the stores department corrected the slips by hand so that the name on the slip matched the invoice; and * The overwritten names did not signify that non-cenvatable 'bazar scrap' was received from unregistered suppliers. The Tribunal held that this explanation was plausible and stood unrebutted by any concrete contrary evidence. The Commissioner's inference that all such corrections proved clandestine receipt of other goods was characterised as speculative and unsupported. (5) The Tribunal further held that the Department failed to take basic investigative steps which could have tested its allegations, such as: * Drawing and examining physical samples of scrap lying in the factory (especially as supplies continued right up to July 2011); * Examining the concerns whose names appeared on the printed (but later corrected) weighment slips; and * Examining the drivers who allegedly named other suppliers at the gate. (6) On the 'bazar scrap' terminology used by an employee in his statement, the Tribunal held that, read in context of the questions, the expression clearly distinguished purchased scrap from the appellant's own generated scrap and did not amount to any admission that non-cenvatable, non-duty-paid discarded articles were received. Both that employee and other senior officials later clarified this meaning; these clarifications were accepted. (7) On transporters' statements, the Tribunal observed: * The appellant's legal relationship was with dealers who supplied goods; it was irrelevant whether transporters denied carrying goods directly from manufacturers' premises, since the appellant procured from dealers, not from manufacturers. * Summons had been issued to 226 vehicle owners, but only a few appeared and gave inconclusive responses; this was insufficient to disprove physical movement of over 1600 consignments. * A handful of mismatches in vehicle registration numbers or instances of over-loading (5 and 9 consignments respectively, out of more than 1600) were adequately explained and could not negate the overwhelming documentary record of receipt and consumption. (8) Regarding bank withdrawals in cash by dealers, the Tribunal held that: * The fact that dealers withdrew cash after cheques from the appellant were credited did not, without more, prove that money was returned to the appellant or that no goods moved. * No evidence was adduced showing any flowback of funds to the appellant or any financial accommodation; the hypothesis remained unsubstantiated. (9) Crucially, the Tribunal emphasised the undisputed factual matrix that: * The appellant's statutory records showed receipt and consumption of the disputed quantities of scrap; * The appellant regularly cleared finished products to Indian Railways on payment of duty, and such clearances and corresponding production volumes were never questioned; and * The Department failed to show any alternate source from which such large quantities of raw material could have been procured if the disputed consignments had not been physically received. In such circumstances, mere suspicion arising from partial anomalies could not displace the positive evidence of receipt and utilisation. Conclusions on Issue (2) (a) The Department did not establish that the appellant failed to receive the inputs covered by the disputed invoices or that the transactions were mere 'paper transactions'. (b) The Tribunal held that the evidence of receipt, accounting, and consumption of inputs, coupled with production and duty-paid clearances, outweighed the Department's conjectural inferences from limited discrepancies in records. (c) Allegations of receipt of non-cenvatable 'bazar scrap' in lieu of duty-paid scrap were found unproved; suspicion could not replace proof. Issue (3): Scope of recipient's obligation under Rule 9 and Rule 15; burden of proving duty payment Legal framework discussed (a) Pre-01.03.2007 text of Rule 9(2) & (3) and Rule 15(1) of the CENVAT Credit Rules, 2004, which required the recipient to take 'reasonable steps' to ensure that appropriate duty had been paid on inputs, and linked confiscation/penalty to failure to take such steps. (b) Post-01.03.2007 amendments substituting Rule 9(2), omitting Rule 9(3), and amending Rule 15, thereby removing explicit obligation on the manufacturer-recipient to ensure upstream duty payment, while retaining Rule 9(5) (burden regarding admissibility of credit). Interpretation and reasoning (1) The Department relied on Rule 9(5) to argue that the burden lay on the appellant to prove that duty had actually been paid by the manufacturers/dealers whose invoices were used. (2) The Tribunal analysed the legislative history and held: * Before 01.03.2007, the requirement to take 'reasonable steps' and the associated Explanation in Rule 9(3), together with Rule 15, governed the duty-paid character of inputs; however, even then, the burden under Rule 9(5) related to admissibility of credit, not to proving actual Government receipt of duty from suppliers. * With effect from 01.03.2007, the specific provisions placing a positive duty on the recipient to ensure upstream duty payment (Rule 9(3), and the 'reasonable steps' language in Rule 15) were consciously removed. The substituted Rule 9(2) confined the jurisdictional officer's satisfaction to whether goods covered by the document had been received and accounted for, not whether duty had been paid by the supplier. (3) In that backdrop, the Tribunal held that post-amendment, a manufacturer taking credit is not legally required to go behind the suppliers' records and prove actual payment of duty to the exchequer; the obligation is to: * Possess proper duty-paying documents containing prescribed particulars; * Ensure that the goods covered by those documents are actually received and accounted for; and * Maintain proper input records as required by Rule 9(5). (4) The Tribunal applied and followed High Court authority holding that it would be 'unreasonable and unrealistic' to expect a buyer to verify the duty payment position of his suppliers from Departmental records and that law does not expect the impossible; credit to a bona fide buyer cannot be denied merely because the supplier failed to discharge duty. (5) On facts, the Tribunal found that the appellant: * Dealt with registered dealers whose registrations were active and whose invoices contained all particulars prescribed in Rule 9; * Received and accounted for the goods in its books and statutory records; * Paid for the goods by account-payee cheques; and * Was subjected to multiple departmental and CERA audits during the relevant period, without any objection being raised contemporaneously regarding the disputed credits. (6) In these circumstances, placing on the appellant the additional burden of proving that manufacturers or dealers paid duty into Government account was held to be contrary to the post-2007 scheme of the Rules and to the judicial precedents. Conclusions on Issue (3) (a) Rule 9(5) does not require the recipient to prove actual payment of duty by upstream manufacturers/dealers; the Tribunal rejected the Commissioner's reliance on that provision for shifting such burden to the appellant. (b) The appellant had complied with its statutory obligations (valid invoices, receipt and accounting of goods, proper records), and therefore its credit could not be denied for alleged default or fictitious conduct by suppliers. (c) The Tribunal held that the appellant's transactions were bona fide and in conformity with the CENVAT Credit Rules, entitling it to the credit taken. Issue (4): Sustainability of penalties on the manufacturer-recipient and co-appellants Interpretation and reasoning (1) The principal penalty on the appellant-company was co-extensive with the disallowed credit and rested on the finding of fraudulent availment of CENVAT credit and contravention of the Rules with intent to evade duty. (2) Penalties on directors, officers, brokers, and dealers were imposed under Rule 26 of the Central Excise Rules, 2002 and Rule 26(2) in respect of alleged participation in a scheme of issuing/handling fake invoices without movement of goods and providing wrongful financial accommodation. (3) Having held that: * The appellant-company had in fact received and used the inputs in manufacture; * The credit was admissible on merits; and * The Department had failed to establish any fraudulent intent or complicity of the appellant in any scheme of availing fake credit, the Tribunal concluded that the very foundational premise for all penalties disappeared. (4) Once it was determined that the main duty/credit demand was unsustainable and that the transactions were bona fide, there remained no basis for penal consequences against the appellant or against the co-noticees whose alleged liability flowed from the supposed wrongful availment of credit by the appellant. Conclusions on Issue (4) (a) The Tribunal set aside the disallowance of CENVAT credit and the corresponding demand of duty and interest against the manufacturer-recipient. (b) As a corollary, all penalties imposed on the appellant-company and on all co-appellants under the CENVAT Credit Rules, 2004 and Rule 26 of the Central Excise Rules, 2002 were held unsustainable and were dropped in toto. (c) The impugned order was consequently set aside and the appeals were allowed with consequential relief as per law.