2017 (3) TMI 461

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.... P.S. Cardozo i/by Mr. Vipul A. Bajpayee for the Appellant in all appeals. Mr. Anil R. Wani with Ms Supriya Devergudi i/by M/s. ANS Law Associates for Respondent No.1 in CEXA85/ 2006. Mr. V. Sridharan, Senior Counsel with Mr. Prakash Shah & Mr. Jas Sanghavi i/by M/s. PDS Legal for Respondent No.2 in CEXA85/ 2006 and Respondent No.1 in CEXA158/ 2006. Mr. Ashutosh Mishra i/by Mr. P.K. Shetty for Respondent No.1 in CEXA154/ 2006. ORAL JUDGMENT (Per Shri S.C. DHARMADHIKARI, J.) : 1. These appeals of the Revenue were admitted on substantial question(s) of law. 2. The substantial question of law on which Central Excise Appeal No.85 of 2006 was admitted reads thus: "Whether it was correct and proper for the Tribunal to set asi....

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....t of Rs. 1,05,18,891/under the provisions of Rule 57I( 5) read with Rule 57AH(i) of CENVAT Credit Rules, 2001 and section 11AB of the Central Excise Act, 1944? (D) Whether the CESTAT was justified in law in setting aside the imposition of penalty of Rs. 2 lacs each on M/s M.H. Corporation, M/s Kohinoor Trading Corporation, M/s Mehta Traders Corporation, M/s National Steel Traders, Mumbai under Rule 209A read with Rule 26(2) of the Central Excise Rules, 2002? " 4. We would take the facts from Central Excise Appeal No.85 of 2006. A common order was passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), West Zonal Bench at Mumbai allowing the appeals of the assessees. This order is dated 23.11.2005. 5. The Revenue ha....

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....el Scrap, etc., which have been shown in the duty paying documents for the purpose of availment of Modvat/Cenvat Credit. In other words, the registered dealers have substituted the goods received from the original manufacturers as described in the duty paying documents and in its place supplied punched bundled scrap of CRCA to Mahindra & Mahindra and to further facilitate the availment of Modvat/Cenvat Credit on such substituted goods. These original manufacturers had issued modvatable documents giving reference of the particulars mentioned in the original duty paying documents received from the original manufacturers/suppliers against the punched bundled scrap of CRCA. After elaborating all these allegations, the Revenue relied upon sev....

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....hed scrap was received. However, the Tribunal has faulted the Commissioner for having not referred to the statements in their entirety. In para 2.3 of the order passed in the case of M/s. Business Combine Limited, the Tribunal refers to the Statement of one Mr. Barve. That statement was that in the Modvat invoice the description is Off Cuts of M.S. Sheet and in commercial invoice it is mentioned as CRCA scrap. The Off Cuts of M.S. Sheets are also a type of CRCA scrap though there is a difference in the wordings or description. The Tribunal holds that no material is shown to the Tribunal Members to come to a conclusion that CRCA scrap is not the Off Cuts of sheets. The Tribunal comes to a factual finding that when duty has been paid on a les....

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.... lots has got mixed and part of the consignment of these mixed lots is sent, no excess or short quantity than that shown on duty paid documents is alleged or found to be dispatched from both dealers and received by the assessee. 9. To our mind, therefore, the Tribunal found that there are no reasons for taking a different view in the other appeals. In fact in the order passed in Mahindra & Mahindra's case, the Tribunal has held that it can safely rely on the order passed in the case of M/s. Business Combine Limited. No attempt can be countenanced for distinguishing the view taken in that case for the simple reason that an argument and loosely canvassed on the basis of recovery of a solitary umbrella handle in one of the bundles of th....