TaxTMI 
TaxTMI 
2018 (11) TMI 298
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....heir factory used for the manufacture of excisable goods as per Cenvat Credit Rules, 2002/2004. The officer of Central Excise department visited their factory premises on 11.12.2008 at about 3.30 P.M. and got the authorised representative to debit the entire amount of Rs. 2,03,42,121/- of Cenvat credit available in RG 23A Part-II and RG 23C Part-I and Part-II. In addition to that the officer of the Central Excise also took away the Cenvat Credit Registers of the factory and along with the four company official viz. M/s Subhash Sharma, Pramod Gupta, N.D. Sharma and K.N. Tripathi. It has been explained that due to threat and coercion by the Central Excise officers, they were forced to re-credit the aforesaid amount of Rs. 2,03,42,121/- that was taken by the appellant vide Entry No. 83 dated 30.12.2008 and their register was retained by the officer. It was alleged by the appellant that the credit was taken for the said amount as the officer of the department forced the factory staff on the date of search i.e. 11.12.2008 to show Nil balance in their RG 23 Part-II against the actual balance of their aforestated amount of Rs. 2,03,42,121/-. In the appeal memorandum, the appellant has rai....
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....ed to the department with regard to allege shortage detected on 11.12.2008 and, therefore, it cannot be held that the appellant are liable to pay Central Excise duty. The appellant further stated that even before the show cause notice dated 22.1.2009 could be responded by the appellant or even before the appellant submitted ER-1 return for December, 2008, a memorandum cum Demand of Defaulter dated 10.2.2009 was issued to the appellants with the allegation that as per sub-rule (1) of Rule 12 of Central Excise Rules, the appellant was required to furnish ER-1 return within 10 days after the close of the month, however, for the month of December 2008, it was not submitted till 10.1.2009. It was also alleged that the appellant did not submit any duty payment particular for the month of 2008. 4. With the aforesaid background, the ld. Adjudicating authority had confirmed the demand as indicated in the earlier adjudication order viz. Order-in-Original No. 19/2011 (CE) dated 22.2.2011 and being aggrieved with which the appellant filed appeal in the CESTAT and Hon'ble CESTAT vide its order referred above has disposed of the appeal with the following direction : "We direct the appellant an....
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....12.2008 and restarted production again on 12.1.2009. They have cleared and manufactured quantity of 5000.100MT on payment of duty under proper invoice dated 12.12.2008 to 31.12.2008. Further, the fact that whether there was shortage of raw material on 11.12.2008 or not could not have made the ground for issue of demand of Rs. 2,04,74,204/- as another show cause notice has been issued to them for recovery of Cenvat credit of Rs. 24,74,672/- on the alleged shortage of 714.48 MT of MS ingots valued at Rs. 83,57,897/- weighing 1932.05 MT found short during the visit of the officer on 11.12.2008. (vi) That even before issue of show cause notice was issued for the alleged unauthorised credit of Rs. 2,04,74,204/- or even before they submitted ER-I return for December, 2008, the Department issued a Memorandum-Cum-Notice of Defaulter dated 10.2.2009 with the allegation that as per sub-rule (1) of Rule 12 of Central Excise Rules, they did not submit any payment particulars for the month of December, 2008. It was contended that they had cleared the goods valued at Rs. 20,42,38,627/- and the duty liability on such goods is to the extent of Rs. 2,25,67,518/-, beyond the expiry of 30 days from ....
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....amount debited was issued to them. Commissioner has although stated that the appellant has taken Cenvat credit of Rs. 2,04,74,204/- without receipt of goods and without having any documents and prescribed Cenvat Credit Rules. However, the ld. Adjudicating authority in the impugned order has not disclosed as to how this figure has been arrived by them without receipt of the goods or without having any document prescribed under the Act. The ld. Commissioner while adjudicating the case had ignored the fact that the factory official was forced to debit the said amount in their RG 23A Part-II. The Entry Book of Duty Credit on Capital Goods shows the following remark "Duty debited against evasion detected by the Preventive Team of Central Excise, Bhiwadi and admitted in the statements of Shri Pramod Gupta, authorised signatory of the unit". Similarly the entry book of duty credit on capital goods carries the remark made on 11.12.2008 "being duty debited against evasion detected by the Preventive Team of Central Excise, Bhiwadi on 11.12.2008" These debit entries have been got made by the officers of the department under threat and coercion. There is no show cause notice for the above evas....
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....n CCE, Noida Vs. Flex Industries Ltd. - 2005 (180) ELT 251 (Tri.-Del.) holding that taking of suo moto credit of excess duty paid by the assessee is proper. In addition the assessee has also relied upon the decision of Hon'ble Delhi High Court in the case of Digipro Import and Export Pvt. Ltd. Vs. Union of India & Ors - 2017-TIOL-955-SC-DEL-CX, wherein it is held that duty on the spot without quantification and with show cause notice is illegal and cannot be excused and must be stopped. It is argued that appellant case was on a similar footing, when the appellant was forced to debit amount by the officer without issue of show cause notice and without quantification of duty alleged to have been evaded. The appellant also submitted upon that the ld. Adjudicating authority failed to appreciate the decision of Hon'ble Madras High Court in the case of Chitra Builders P. Ltd. Vs. Additional Commissioner of C, CE & ST - 2013 (31) STR 515 (Mad.), wherein it was held that no duty could be collected from the assessee without an appropriate assessment order being passed by the authority concerned, and by following the procedure established by law. The ld. Adjudicating authority also failed to....
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...., Audit for the relevant period that is in December 2008. Regarding the first issue, we find that the Adjudicating authority has gone through the entire submissions made by the appellant in pursuance of this Tribunal remand order as referred above. It has been brought on record that the RG 23 register was having the balance of Rs. 72,75,421/- for the month ending December 2008. However, the same has been shown to be Rs. 2,77,49,625/- in their ER-1 return without the actual receipt of the material on which such credit has been availed. The appellant could not produce any document at the strength of which such huge credit was taken in their RG 23A Part-II register. Further, perusal of the RG 23A Part-II by the adjudicating authority, it was found that with effect from Jan. 2009 in which after leaving blank five rows starting from Serial No. 91 to 159 for the period 1.1.2009 to 13.2.2009. This also came out from the statements of the Authorised persons, who was responsible for maintaining the record. During the appeal before us, ld. Advocate could substantiate the facts that the duty paying documents on which the claim has been made for the availability of credit was placed before the....