TaxTMI 
TaxTMI 
2022 (2) TMI 1169
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....ime and the present appeals is a consequence of de novo proceedings following remand of the matter back to the adjudicating authority. 1.2 As the facts of these appeals are common, these are being taken up together for disposal through this common order. The main Appellant is engaged in the export of stainless steel utensils under claim of rebate of duty paid on Inputs used in the manufacture and export of Stainless Steel utensil in its factory and its Job workers. Investigation conducted by the officers of the DGCEI revealed that the raw material shown purchased were never brought to the factory of the appellant or to the premises of the Job Workers, declared with the department and the stainless steel utensils, which were exported, were procured from other manufacturers. The show cause notice was issued for recovery of demand. The Adjudicating Authority confirmed the demands. On further appeal, Tribunal vide Final Order No. A/11128-11130/2014 dated 25.06.2014 remanded the matter for denovo proceedings. Resulting in, Commissioner confirmed the demand vide OIO dated 13-3-2018. Aggrieved, Appellant again filed Appeal before the Tribunal. Vide Final Order A/ 10341-10343/2019 dtd. ....
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....OM), that in re-adjudication upon remand, the adjudicating authority cannot re-open a concluded issue. 2.3 On merit he submits that the department case is primarily based on the statements of some of the Suppliers and of the Transporters, the department has not recorded any statement of Mr. Deepak Agarwal, Director of Appellant's company. Prior to investigation by DGCEI, the Range Officers visited the factory for verification of the extent of wastage in the manufacturing process, etc in connection with the rebate claims. During such verification the officers took stock of the duty paid inputs, goods in process and finished goods. The inspection report of department gives the details of raw materials, invoices, LR nos. and date under which the same were received, the name of supplier, the qty. received, the qty issued for cutting, the qty. of circles made out of cutting and the qty. of scrap. The said Inspection report signed by the departmental officers, whose statement has not been recorded by the DGCEI. The said inspection report contains the details of the duty paid inputs received from the suppliers. The Commissioner has completely disregarded the said Inspection Repor....
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....Tax Authorities contradict their statements recorded by DGCEI and those supplier who appeared for cross -examination have stood by their statements before Maharashtra Sales Tax Authorities and confirmed delivery of the inputs to the Appellant. In the present matter no location nor any buyer where/to whom the inputs were allegedly diverted in Vasai, Bhayender or anywhere else have been identified or indicated or shown/ established by any evidence. Goods exported by the Appellant not been disputed by department in the present matter. The allegation of department that goods exported by Appellant under claim of rebate were those purchased from Delhi suppliers through Shri Sharad Gupta is totally baseless. The Report/review in DGCEI file obtained under RTI, clearly states that verification was done with Container Corporation of India Ltd. (CONCOR) to ascertain whether the numbers of vehicle under which export goods were received at Nhava Sheva matched with Vehicle numbers in ARE-2/ Central Excise Invoice. The CONCOR by letter dated 12.10.2006 confirmed the details of vehicles. The allegation of lack of machinery and absence of manufacturing activity at Job Workers premises at Vasai tota....
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....facture the quantum of finished goods as claimed to have been got manufactured from them by HK Impex. d) Machinery with job workers was sufficient only for manufacturing trays and that the job workers could not have manufactured other export goods such as basins, bowls, spoons, tea pots, etc . e) That the export goods were neither manufactured in the factory of H.K.Impex nor in the premises of job workers. f) That H.K.Impex had shown 81.75% of the purchased material as sent to job workers, but the same was never received by the job workers. g) That rebate of duty paid on the materials used in the manufacture or processing of excisable goods which are exported, can be availed subject to the condition that the raw materials must be brought in the claimant's manufacturing unit or in the manufacturing unit of the job worker and used in the manufacture of exported goods. That the duty paid materials were not used by H.K.Impex or their job workers for manufacture of export goods and were sold by them. 4.1 In the first round of adjudication the adjudicating authority vide order in original dat....
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....d copies of various documents from the Central Excise Department on the issue and commenced Independent Investigations from VAT angle. During this investigation the statements of the transporters were recorded by Maharashtra Sales Tax Authorities in their own language "Hindi", which indicate that the inputs in fact have been transported and delivered to the factory of main appellant or to it two job workers at Vasai, which contradict the statements recorded by DGCEI in English. These transporters have confirmed transportation of inputs from the factory premises of the main appellant to its two job workers in vassai. The input suppliers of Rajasthan namely Kartik Ramesh Shah, Director of Shah Foils Limited and Shri Suresh Chandera Mohnot of Mohnot Metals have also deposed before the Maharasthra Value Added Tax (MVAT) authorities that the inputs were delivered at the premises of the main appellant or at the premises of the two job workers at Vasai. Thus, the two set of statements of the same persons on the same issue of transportation of inputs by two investigating authorities are contradictory to each other. The report of MVAT authorities also revealed that the two job workers of th....
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....appellant has not received the input, does not survive after the above finding of the Learned Commissioner. In our view on the basis of aforesaid order which attained finality as the revenue has not challenged the aforesaid finding, the learned Commissioner had no option except to discharge the show cause notice however, the learned commissioner proceeded to hold against the appellant on an entirely new ground which was not only not contained in the show cause notice but which in fact runs counter to the Show cause notice. The Commissioner came up with a new ground which is not there in the Show cause notice namely that para 4 of the rebate Notification 21/2004 permits sending the goods to job worker only for the limited purpose of tests, repairs, refining, reconditioning or manufacture of intermediates product and not for manufacturing of final product. He held that H.K Impex could not have sent the inputs to the job worker for the manufacture of Final product by the Job workers. The appellant challenged the said order in ....
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....is that the appellant have not received the inputs and the same was not used in the export goods, therefore, the appellant is not entitled for rebate claim does not exist in terms of Commissioner's earlier order dated 13.08.2018 read with Tribunal's Miscellaneous order dated 06.08.2019. By this order settled that the appellant have received the inputs and used in the manufacture of export goods. On this undisputed conclusion the entire case of the department gets demolished. 4.4 We find that the impugned order in original traversed beyond the scope of the remand order by this tribunal vide order dated 21.02.2019 read with order dated 06.08.2019 therefore, the same was liable to be set aside on this ground alone. It is a settled law laid down in CC vs. National Steel & Agro Industries Ltd- 2015 (322) ELT 690 (Bom.) that in re-adjudication upon remand, the Adjudicating Authority cannot reopen the concluded issue. In the present case the issue of receipt of inputs, their transport to the job workers and manufacture of the final products to the job-worker and receipt of the same by the appellant stoo....
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....ed that the appellant as well as their job workers have not received the inputs in their factory. Accordingly, it was proposed to deny the rebate claim of duty paid on such inputs which was allegedly not received. 4.7 We find that the allegation in the SCN is that the appellant have not received the inputs on which they have claimed the rebate. Prior to the commencement of investigation by DGCEI on 27.03.2006 in the normal course, the range officers visited the factory of the H.K Impex for verification of the extent of wastage in the Manufacturing process etc. in connection with the rebate claims. During such verification the officer took stock of the duty paid inputs, goods in process and finished goods for such verification. The officer has prepared their inspection report dated 10.03.2006 and 22.03.2006. In said inspection reports the range officer has recorded all the details such as description of raw-material, Invoices and LR Nos. and dated under which the same were received, the name of the supplier, the quantity received, the quantity ....
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....rd transporters statements recorded by DGCEI which were heavily relied upon in the SCN, in the Cross-examination of the transporters they stood by their statements given before the Maharashtra Sales Tax Authority and confirmed delivery of inputs to the appellant. In this position the transporters statements given before DGCEI have lost its evidential value and could not have been relied upon. The MVAT Authority had investigated the same case wherein there was an allegation that the goods supplied to the appellant diverted. The statements of the same transporters were recorded wherein they have categorically stated that the goods have been supplied to the appellant and their job workers. In the remand proceedings as per the direction of the Tribunal some of the transporters were cross examined as stated above. However some of the transporters could not be produced for cross examination. We find that some of the transporters were cross examined and they have clearly stated that the goods have been supplied to the appellant and their job workers. In case of some of the transporters, though their inculpatory statements were recorded by DGCEI but since they were not examined....
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....nbsp; The Commissioner also relied upon the Lorry receipts of Jodhpur based transporters wherein the place of delivery is mentioned as either Valsad or Vasai and not Umbergaon. In this regard the appellant have submitted that the observation of the commissioner is factually incorrect, in as much as in all the lorry receipts of Gaurav Roadways it mentioned the address of the appellant's factory at Umbergaon. Most of the Lorry receipts of other Jodhpur based Transporters mentioned Umbergaon. In few cases the lorry receipts mentioned either "Umbergaon, Valsad" or "Valsad, Vasai". It is the submission of the appellant that Umbergaon is in Valsad District only and the Appellant's job workers were at Vasai only. On this fact we are of the view that merely because on lorry receipt either "Umbergaon, Valsad" or "Valsad , Vasai" is mentioned this alone cannot be reason that the goods were not transported to the appellant's factory or to their job workers. 4.13 It is also pertinent to note that two suppliers viz. Kushal Industries, Jodhpur and Devendra Udyog, Jodhpur in their statements have maintained that the inputs were supplied to H.K Impex. This however strengthen the cla....
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....ujarat bears the transport vehicle number. The appellant used packing material which was purchased and received by them in their factory for manufacture of export goods. 4.16 In the show cause notice, there is also an allegation that in the Appellant's factory there is no sufficient machinery to manufacture the goods. In this regard the Panchnama dated 27.03.2006 clearly shows that the sufficient machinery were installed in the Appellant's factory at Umbergaon viz: • Heavy Duty Shearing Machine-1; • Handrolling Machines- 1; • Pressing Machines- 4; • Beeding Machinery -3 nos; Grinding Machinery- 1; • Powered Lathe Machinery- 1; • Heavy Duty Mechanical Power Presses- 1; • Heavy Duty Cutting Machinery Big- 1; • Cutting Machinery Small -1; • Drilling Machinery -1; • Embossing/Engraving Machines (Manual)- 1; • Buffing Machinery- 4 Nos. In view of the above fact, it cannot be said that the appellant did not have sufficient machinery for manufacturing. It is also noticed that the DGCEI also obtained a Chartered Engineering Certificate r....
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....in the appellant's factory as well as job worker's factory. 4.20 We also note that it is a surprising fact that DGCEI did not record any statement of the appellant's Managing Director Shri Deepak Agarwal despite giving him various summons and his visit to DGCEI Office. 4.21 The department's case is also on the allegation that the goods exported by H K Impex under claim for rebate were those purchased from Delhi suppliers through Shri Sharad Gupta. The report which was available in DGCEI file obtained under RTI by the appellant states that verification was done with Container Corporation of India Ltd. to ascertain whether the vehicle number under which export goods were received at Nhava Sheva port matched with the Vehicle Number in ARE-2/ Central Excise Invoices. The report from CONCOR by letter dated 12.10.2006 shows that the vehicle numbers tally with the list of trucks carrying goods under claim for rebate which left from appellant's factory at Nhava Sheva port for export. The report also stated that the goods procured by Shri Sharad Gupta and supplied through Delhi transporters do not match with exported goods. On the basis of above facts the charge of the dep....