AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 644
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....edit on the inputs, particularly by the appellant - M/s. Jiji Industries Ltd (formerly known as M/s. Krishna Profiles Private Ltd.) hereinafter referred to as JIL/ 'KPPL' for short and by M/s. Mungad Steels & Alloys Pvt. Ltd. (hereinafter referred to as "MSAPL" for short). The duty and penalty vide the impugned orders-in-original demanded are as follows: - (Arising out of order in original No. 28/Pr.COMMR./ST/BPL-III/2019 dated 02.05.2019 passed by the Principal Commissioner, Central Goods, Service Tax & Central Excise, Bhopal). Sl.No. Name Duty Penalty under Section Appeal Nos. 1. Gaurav Mungad (KPPL) 1,50,00,000 u/s 26 E/51682/2019 3. Vaibhav Mungad(KPPL) 60,00,000 u/s 26 E/51683/2019 4. Om Prakash (KPPL) 50,00,000 u/s 26 E/51684/2019 5. Abhas Mungad (AS-RAPL) 50,00,000 u/s 26 E/51685/2019 6. Ravi Ladda (Director RAPL & DAPL)Prop. Ocean Impox 80,00,000 u/s 26 E/51686/2019 7. MSAPL 50,00,000 u/s 26 E/52069/2019 8. JJIL (KPPL) 2,39,15,431 (rebate) 2,39,15,431/- u/s 11C E/52672/2019 9. JJIL (KP....
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....central excise and engaged in the manufacture of Aluminium billets, profiles and Aluminium alloy conductors, etc.. They have mainly exported Aluminium Alloy Conductors, Profiles, etc. manufactured by them, from ICD Mandideep as well as ICD Pithampur, under claim for rebate of central excise duty paid on the goods cleared for export, or DEPB. 5.1 Another company, Mungad Steels and Alloys Pvt. Ltd., of which Shri Gaurav Mungad is one of the Directors, has got central excise registration (as a manufacturer & Trader) located at Rambali Nagar, Indore, is engaged in the manufacture and removal of excisable goods, being Aluminium profiles, ingots, etc. and are also engaged in trading including export. 5.2 Ocean Impex is a proprietorship concern of Mr. Ravi Laddha and is a registered dealer and an importer of aluminium scrap. They have supplied scrap mainly to JIL and Prerna Enterprises (PE), another registered dealer and exporter of aluminium alloy conductors. Its proprietor is one Shri Praveen Tamhankar. Further, Prerna Enterprises resold scrap to Mungad Steels. Mungad Steels supplied ingots to JIL & Prerna Enterprises. Further, Mungad Steels purchased the aluminium conductors from....
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.... particularly with respect to purchase made from Ocean Impex (for example printout taken on 2nd December 2010 and Entry No. 332 dated 11 Nov., 2010 invoice no. shown as TR/18/RI dated 2nd November, 2010 Party - S.S. Enterprises, ECC Code No.88/DCM 8728 PX D001, whereas RG 23-A Part-II seized from the factory has shown as Entry No.332 dated 11 November 2010, Invoice No. KP/PIV OID/022 - Party - S.S. Enterprises - ECC No. AB UPL 6134 BET 001. (This ECC number pertains to M/s. Ocean Impex). Such invoices appeared to be fabricated and forged. Initially, Prerna Enterprises availed fraudulent Cenvat credit and subsequently passed on the same to M/s.KPPL or Mungad Steels, through Ocean Impex. 8. The residential premises of Shri Praveen Tamhankar, Proprietor of Prerna Enterprises was also searched on 20 November 2011, during which the officers recovered and seized photocopies of purchase invoices of M/s.Prena Enterprises. However, no sales invoices of Prena Enterprises were available at the residence. These purchase invoices had purportedly been issued by certain parties based at Ahmedabad and Mumbai namely M/s. Maruti Aluminium Private Ltd., M/s.Maliwal Impex (P) Ltd., Ghanshyam Metal ....
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....ex (P) Ltd., M/s.Ghanshyam Metal Udyog, Ahmedabad, M/s. Servashwar Metal, Ahmedabad, M/s.Ramdev Enterprises, Ahmedabad, M/s.Bothra Metals & Alloys (P) Ltd., Mumbai and M/s. R.K. Metal Corporation, Mumbai. The statement of the concerned persons were recorded under Section 14 of the Central Excise Act, 1944. The firms/companies submitted their documents like sales ledgers and original copies of the sales invoices bearing the same serial Nos. which were appearing (as per seized photocopies of the purchase invoices of Prena Enterprises), etc. It appeared that these parties of Ahmedabad and Mumbai never sold any goods to Prerna Enterprises, KPPL, Mungad Steels, Ocean Impex, etc., on the strength of the said invoices. They had never issued such invoices, so recovered from the premises of Praveen Tamhankar, and whose details were appearing in cenvat register of KPPL, as initially submitted with the Range Officer, and available in the seized hard disc. It appeared that these parties had sold aluminium scrap to some other persons vide the invoices of even serial nos. Most of these dealers categorically and vehmentally stated in their statements that all the seized invoices shown to them (re....
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....ngad Steels. However, documents provided by Mungad Steels indicated the transportation made from Ocean Impex to Mungad Steels under lorry receipts of M/s. Gupta Transport Services (regular Transporter). However, in further investigation, Mr. Sanjay Gupta of Gupta Transport Service denied the transportation. It was also noticed that the vehicle no. shown for transportation were incapable/unregistered. Similar observations were there by Revenue, after scrutiny of Cenvat Register for the month of November 2010 to December 2010. 13. During scrutiny of Cenvat register (seized from the factory), it appeared to Revenue that KPPL have availed fraudulent cenvat credit on the basis of invoices issued by 'Prerna Enterprises' towards purchase of furnace oil. It appeared that Prerna Enterprises had issued forged invoices bearing Nos.KP/FO/001 to 019 during the month of December 2010 and (Nos.KP/FO/020 to KP/FO/024) during January 2011. As per the invoices, it was evident that Prena Enterprises had shown to have availed cenvat credit on invoices issued by M/s. Essar Oil Ltd, Jamnagar and Kotak Petrochem Private Ltd Jodhpur; whereas on going through the cenvat register as available in the hard....
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....hri Ravi Ladda further stated that they are doing trading in Radhe Alumimium Pvt. Ltd. Further, the affairs of Radhey Aluminium is looked after by Shri Om Prakash, father of Shri V.Mungad and Shri Abhash Mungad, Nephew of Shri Vaibhav Mungad. Subsequently, Shri Ravi Ladha retracted his statement vide Affidavit dated 2.12.2011 before the Notary Public, Bhilwara, Rajasthan. It is stated that his statement was recorded under pressure and is not true and correct. The said retraction was refuted by the Addl. Director, DGCEI vide letter dated 17.01.2012. In the course of search at Mungad & Alloys Pvt. Ltd., no records or documents were found. It was stated by the Director that the records were sent to the Consultant at Mumbai. They shall arrange to call for the same for verification. It was subsequently informed by MSAPL that the said records, which were being carried by the Representative - Shri Rahul Parihar, who was returning from Mumbai on 18.11.2011 to Indore, got lost in transit and as the person was traveling in train in an unreserved accommodation, resulting into loss of the records due to theft. Copy of the FIR was also filed. Inquiry was also made one from Shri Sanjay Sharma, H....
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....tated that the said company was in existence till 2011. He has two transport vehicles. The said vehicles are now attached with Sonu Road Lines, in which firm he is presently engaged. He does not have any documents relating to Gupta Transport Services and the same have been disposed of after closure of the firm. He accepted the billities of Gupta Transport Services as prepared by his Representative, Shri Ajay Rehtankar. He also stated that the name of the supplier in some of the billities of Ocean Impex is not known to him. Shri Sanjay Gupta subsequently retracted his statement vide affidavit dated 11.12.2011, which was received in the office of the DGCEI on 20.12.2011. Thereafter, in response to further summons issued, Sanjay Gupta did not appear before the Revenue Authorities. 19. Statement of one Shri Vikas Awasthi, Proprietor of Sonu Road Line, Indore was recorded on 7.12.2011, who, inter alia, stated that they own 5 trucks, which are engaged in transportation works. They also arranged trucks from other transporters on commission basis for transportation work on the strength of their billities or LRs. Further, it was stated by him that he knows Shri Gaurav Mungad and accepted....
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....remises on 8.2.2011 by DGCEI, Ahmedabad, who withdrew several records and documents including the purchase/sales invoices, transport documents, statutory and non-statutory records for the last 5 years prior to Jan. 2011. They were not in a position to furnish any information or copy of their records. As per memory, he denied any transaction with Prerna Enterprises, DAPL, Ocean Impex but accepted having transactions with MSAPL and JIJI/KPPL. On being confronted with the copy of the invoices purportedly issued by them (found from the premises of Prerna Enterprises), he denied having issued any such invoices. From the statement of one Shri Mukesh Samdani, Director of Sarveweswar Metal, Ahmedabad was recorded on 10.12.2011, wherein he inter alia stated that they are registered dealer in aluminum scrap. They have never issued any invoices nor had any transactions with Prerna Enterprises, DAPL, MSAPL, SS Enterprises, S.K. Marketing and Adinath Traders. However, he had accepted their transactions and supplied aluminum scrap to KPPL. On being confronted with one invoice purportedly issued by them seized from the premises of Prerna Enterprises, he denied the same and further produced copies....
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....ers-in-original), while sanctioning rebate claims, proof of export i.e. copy of shipping bill/MATE's receipt have not been furnished by PE. It further appeared that as regards the rebate claims, which were filed on 24.01.2011, report was called from the Range Officer to verify the duty payment particulars, and without waiting for a verification for reasonable time, rebate claims were sanctioned on 1.2.2011, asking the RO to confirm the correctness of duty payment within 15 days, failing which, it shall be presumed that appropriate duty has been paid. It further appeared that no proper efforts were made by the Range Officer, Range-IV, Indore to verify the genuineness of input invoices and excise duty paid on inputs received by MSAPL. However, the Range Officer issued verification certificate regarding correctness of the duty paid by MSAPL on the invoices issued by them to KPPL. 27. In the course of investigation, Dy. Commissioner, Bhopal-II, vide his letter dated 30.01.2012 to DGCEI stated that, as appearing from the original file in respect of rebate claims, filed by Prerna Enterprises (30) as merchant exporter and KPPL (64) and RAPL. It appeared that invoices were issued by RAP....
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.... and verification of the documents filed, being application for rebate, ARE-I in original and duplicate, EP copy of shipping bill, MATE receipt, bill of lading, export invoice, relevant pages of cenvat register showing therein duty payment particular, disclaimer certificate from the merchant exporter. 30. The statement of Shri Gaurav Mungad, Managing Director of JIJI/KPPL and Director of MSAPL was recorded on several dates (10.01.2012, 11.01.2012, 01.06.2012 to 07.06.2012), wherein, inter alia, he stated that burning loss is normal from 5 to 10% and generation of dross/scrap was between 25% to 35%. Further, Aluminium chips and process scrap is also generated during manufacture, which is about 10% to 20%, in the manufacture of aluminium profile/conductors. The appellant maintained Form-IV Register for input. Furnace oil is not entered in the Form-IV register and the same is directly consumed. Further, KPPL is also engaged in trading in non-cenvatable scrap. Such scrap does not enter the factory premises, only the accounting entries are made. He further stated that Aluminium Scrap is imported directly or on high Sea Sale basis by KPPL/M/s.JIJI. Apart from import, Aluminium scrap h....
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....s for the transaction as if they have received the goods at Bhilwara from JNCH, Nava Sheva and thereafter, they again dispatched the same to Indore to JIJI/KPPL. Further, in many cases, Ocean Impex has sourced Aluminium scrap from Prerna Enterprises and sold/transferred the same to KPPL/JIJI at Indore itself. Further, stated that on his request, Shri Praveen Tamhankar, Proprietor of Prerna Enterprises was providing the professional services in relation to DGFT, export/import, etc. They have also been purchasing the raw materials and inputs from Prerna Enterprises, who are registered dealers under the Central Excise Act. They also received Aluminium scrap and furnace oil from Prerna Enterprises during 2010-2011. 31. On being confronted with the statement of various parties alleged suppliers of raw materials at Ahmedabad and Mumbai, with documentary evidence, collected from them, wherein most of them have denied having transaction with Prerna Enterprises, MSAPL, Ocean Impex, Mr. Gaurav Mungad confirmed and admitted that copy of the purchase invoice recovered from the premises of the Praveen Tamhankar, Proprietor of Prerna Enterprises, are fake/forged and further stated that the ce....
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....he cenvat credit is admissible to them. Accordingly, instead of selling Aluminium ingots directly from MSAPL to KPPL, MSAPL sold the goods to Prerna Enterprises and thereafter Prerna Enterprises has sold the goods to KPPL, but the materials /inputs did move from MSAPL to KPPL. The transportation has been done on own vehicles, and the transport documents are not available. 33. He further stated that Shri Ravi Laddha, Proprietor of Ocean Impex is not very well conversant with the documentation and hence committed clerical errors in documentation. 34. On being confronted with the high export price of Aluminium Conductors, Shri Gaurav Mungad stated that MSAPL had purchased inputs @ 500 kgs. approximately and after processing, they have sold the same @2100/- per kg. for export. Hence, the goods manufactured under technical specification required expertise and also the generation of higher scrap. Further, stated that KPPL has got two melting furnace, in which scrap of Aluminium, Alloy, etc. are melted so as to manufacture Aluminum logs containing Alloy as per specific order. Such logs are converted into billets after necessary cutting and thereafter further extruded on extrusions p....
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....nder export are pieces of cut size bars/strips of solid Alloy Aluminium, and the same are for use in electric panel for conductivity. He further stated that in the test report, silver could not be seen, as it was used as flux. 41. On being asked, he stated that they have submitted most of the BRCs in support of the receipt of export proceeds. Some are pending, which they shall deposit in due course. He further stated that on verbal request they have supplied costing sheet of export goods to the officers of ICD, Pithampur. He further stated that in the month of November, 2011, their 4 export containers, which were factory stuffed was opened and examined by the officers at ICD, Pithampur.Samples were drawn and thereafter allowed for export. Such exports were under the claim of duty drawback, which is yet to be sanctioned. He further stated that Shri O.P. Maheshwari, Shri Vaibhav Mungad, Shri Ravi Laddha, Shri Abhash Mungad and Shri Praveen Tamhankar acted in his over all directions. 42. Mr. Abhash Mungad (Nephew of Shri Gaurav Mungad), Director of Field Irrigation Pvt. Ltd. and Authorised Signatory of RAPL appeared before the Revenue Authorities and his statement was recorded o....
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....er stated that there may be some irregularities in the invoices issued by Prerna Enterprises. 47. Statement of Shri Dhannu Lal Athya, Proprietor of Adinath Traders and Partner of M/s.S.K. Marketing was recorded on 22.06.2012. He, inter alia, stated that presently he is working as meltor in the factory of National Steel & Agro Ltd.. Earlier, he was working as a Melter in the factory of JIJI, wherein he was posted for about three years. He left the job from JIJI in April, 2011. During the period, he worked with JIJI, from April, 2008 to April, 2011, he manufactured Aluminium Sections, Profiles, etc. The furnace capacity of JIJI is approximately 3 MT. From Aluminium Scrap, aluminium logs were manufactured of 12 Ft to 16 Ft. These were further cut and extruded to manufacture Aluminium Sections /profiles. He also stated that during October, 2010 to April, 2011, JIJI was manufacturing Aluminium flats/bars, which were exported by them. He has never seen silver scrap being used in the factory of JIJI. Aluminium dross was generated approximately 8% to 10%. He further stated that he did sign on some papers/forms at the instructions of Shri Shailendra Yadav, who is working as Driver in JIJ....
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....hat although the samples were drawn for the goods exported from time to time at the time of stuffing and sealing under physical supervision, however, no samples were ever sent for testing. Thus, in order to have authenticated test report, the sample was forwarded vide Test Bond dated 16.08.2012 to CRCL to ascertain their physical properties and mettatur /alloy/chemical composition. As per report dated 16.10.2012 of the Asstt. Chemical Examiner, CRCL, is as follows:- "On opening of the sample packet, it was found to contain sample in form of metallic cuboids. Each is mainly composed of aluminium along with other elements i.e. Si, Fe, Cu, Mg, Mn,Ti, Zn, Ni, Pb, Sn, Cr, Be, Zr, V and Aluminium 96% and above. " 53. It is further opined that the sample does not meet the requirement for Aluminum Alloy Conductor. 54. On comparison of the report of the CRCL and Shri D.K. Jain, CE, it appeared to Revenue that the goods exported by JIJI and MSAPL cannot be called as Alloy Aluminium Conductors and further, the goods exported appeared to be inflated in value. 55. During investigation, it was seen, vide letter dated 8.10.2010 that JIJI informed the Astt. Commissioner of the Di....
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....ncluding cess may not be demanded alleging non-receipt of inputs during the period October, 2010 to November, 2011. Proposal to appropriate amount of Rs. 1,09,39,000/- deposited during investigation. Further, it was proposed to demand rebate claim sanctioned Rs. 2,35,26,409/- during the period October 2010 to November, 2010. Further, penalty was proposed under Rule 15 of CCR, Rule 25 of CER as well interest. 58. MSAPL was directed to show cause as to why cenvat credit of Rs. 3,83,72,609/- including cess be not dis-allowed and demanded, being credit taken during October, 2010 to Jan. 2011. Proposal to impose penalty on the other appellants, to show cause as to why not penalty be imposed under Section 26 of CER. 59. Another show cause notice dated 10.04.2014 of even dated also issued by DGCEI on more or less similar allegations arising out of the same investigation. JIJI was required to show cause as to why erroneous rebate of duty on exported goods totaling Rs. 2,39,15,431/- sanctioned by the Maritime Commissioner, Central Excise, Bhopal be not demanded and recovered by invoking the extended period of limitation. It was further proposed to impose penalty under Rule 25 of CER. ....
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....g. The whole case of Revenue is made mainly on the basis of the allegation that suppliers of inputs originally being from various parties situated at Ahmedabad, Mumbai, etc. have denied the supply of inputs to Prerna Enterprises, Ocean Impex, etc., who in turn, have passed on the cenvatable goods with credit to JIJI Industries and MSAPL. The appellants had prayed for cross examination of the persons, whose statements have been relied upon by the Revenue. The appellants in their reply to the show cause notice had also given a specific list of several persons praying for the cross examination. However, the cross examination was not allowed without any cogent reason, making a valid allegation on the appellants of delaying tactics, in spite of this being the second round of litigation. 69. It is further urged that the demand of cenvat credit from MSAPL is bad for Rs. 2,46,58,188/-, as the same also forms part of the cenvat credit demanded from JIJI Industries. Vice versa clearances were also made from JIJI to MSAPL and credits were availed by MSAPL, and so the demands so raised, result in double demand of the same amount. 70. Thus, the demand of cenvat credit availed plus the reb....
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....never any objection was raised nor any adverse report was made at any point of time. Further, it is urged that the appellant had taken heavy bank loans in crores and they were subject to regular stock audit and factory visit by the officers of the bank or their authorized agents, and there being never any adverse report. It is further urged that the turnover of MSAPL and /or their purchases also include the quantity traded by them, which have been ignored, vitiating the impugned order. 74. It is further urged that vide various orders-in-original, rebate claims were allowed after proper verification of the cenvat credit availed and thus, such orders-in-original granting rebate have attained finality, as no appeal has been preferred by the Department. Thus, dis-allowance of rebate claim in the hands of the appellants is bad and fit to be set aside. It is further urged that several inputs suppliers at Ahmedabad and Mumbai in their statements have stated that they know the appellants - JIJI Industries and MSAPL and have had their business transactions with them, which fact has been ignored by the Adjudicating Authority. 75. It is further urged that the impugned order is in gross ....
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....ounsel for the appellant :- • CCE, Customs & Service Tax Vs. Juhi Alloys Ltd. 2014 (302) ELT 487(Allahabad) • CCE, Indore Vs. Prag Pentachem Pvt. Ltd. 2018(360) ELT 1025 (Tribunal -Delhi) • Stelco Strips Ltd. Vs. CCE, Ludhiana 2017(358) ELT 481 (Tribunal-Chandigarh) • Nidhi Metal Auto Components P. Ltd. 2016 (343) ELT 576 (Tribunal-Delhi) • Vikram Cement (P) Ltd. 2012 (286) ELT 615 (Tribunal-Delhi) • Jindal Drugs Pvt. Ltd. -2016 (340) ELT 67 (P & H) • Basudev Garg- 2013 (294) ELT 353 (Delhi) • Andaman Timber Industries 2015 (324) ELT 641 (SC) 76. It is further urged that the quantity of inputs disputed is about 4730 MTs, as per the transport norms of 10T per vehicle about 450 trucks loads are required. Whereas the Revenue have in the course of its inquiry enquired with only few transporters and drawn adverse conclusion, which is bad and fit to be set aside. It is further urged that the allegation of Revenue are not substantiated and the same are based on presumptions and assumptions. It is further urged that the contention of the appellant - JIJI that aluminium scrap imported ....
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....given voluntarily can form sole basis for proving the allegations against an assessee, without any corroborative evidence. Further, the admitted facts need not be proved. 83. It is further urged that the quantity of aluminium scrap claimed to have been generated during the disputed period is far in excess of the quantity of finished goods manufactured. Further, to justify the consumption of huge quantity of raw materials, far in excess of the requirement, the generation of scrap/by-products has been inflated. 84. Further, in order to quickly encash the fraudulently cenvat credit through export under rebate claim, the value of the goods exported has been inflated. 85. Accordingly, he prays for dismissal of the appeals by the assesses and for allowing the cross objection of the Revenue. 86. Having considered the rival contentions and on perusal of the records, we find that the main question to be decided in these appeals is - whether JIJI/KPPL, MSAPL and RAPL are guilty for taking fraudulent credit on the basis of the forged invoices without receipt of inputs mentioned therein. Other question for consideration is whether the duty was paid on clearances for export, the ref....
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.... statements of the following transporters viz. (i) Shri Sanjay Gupta, Proprietor of Gupta Transport Services. (ii) Shri Vikash Awasthi, Proprietor of M/s.Sonu Roadlines. (iii) Shri Jitendra Pal Singh Ahluwalia, Owner of three trucks. (iv) Shri Sanjay Kumar Sharma, Husband of owner of the Vehicle No.MP09-GE-2021. (v) Shri Ramesh Chandra Mehta, Ex-owner of Truck No.MP09D7415. (4) Statement of Shri Ajay Goel, Director of VCRM Petro Chemical Ltd. - Statement of Ajay Goel, Director of VCRM Petrol Chemical Ltd., who although admitted that they have supplied furnace oil to JIJI, but stated that they have not issued invoice no.572 and 573 during the year 2010-2011. (5) Statements of Shri Praveen Tamhankar, Proprietor of Prerna Enterprises, in which, he, inter alia, stated that he was only a dummy proprietor and in actuality the transactions in Prerna Enterprises were conducted and controlled by Shri Gaurav Mungad and Shri Vaibhav Mungad, for which he has been promised some monetary compensation. (6) Shri Ravi Laddha, Proprietor of Ocean Impex in his statement accepted that they have issued invoices for sale of....
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....f the present case, was required also for the following reasons:- (i) The appellant-manufacturers had cleared the goods for export under bond (ARE-I) and thereafter, they have filed the export promotion copy containing the evidences of the Port Officer, certifying the factum of export. (ii) The goods exported from ICD, Pithampur or Mandideep have been examined either in the factory at the time of stuffing by the officers or at the port by the customs officers. Further, samples were also drawn. In the course of investigation, no inquiry has been made from such officers, who were involved in the supervision and sealing of the containers for export. (iii) The manufacturers - appellants have made payments for the raw materials /inputs through regular banking channels and no irregularity has been found on this aspect. 90. Shri Praveen Tamhankar, Proprietor of Prerna Enterprises has admitted that he has signed several invoices and shipping bills. Further, the allegation of the Revenue as regards the forgery of signature of Shri Praveen Tamhankar by others, has not been established by the process known to law. 91. Thus, in the facts of the present case, th....