Full Judgment
2. As regards the name of the appellant/assessee, the learned Counsel for the applicant fairly stated that the mistake had occurred before the Commissioner and that the wrong name was shown in the appeal which was filed before this Tribunal by the present applicants. Therefore, there was no mistake apparent from the record of the Tribunal in so far as the name of the appellant was concerned because the appellant themselves gave that name which according to the learned Counsel was the same when the Commissioner made the order.
3. So far as the contention that a mistake has crept in Paragraph 5 of the final order is concerned, on a careful scrutiny, this seemingly innocuous contention is devoid of any substance and misleading. This should be clear from the contents of the entire Paragraph 5 of the final order and the corresponding findings given by the Additional Commissioner which were under challenge before the Tribunal. In Paragraph 5 of the Tribunal's order in respect of which the rectification was sought, it was stated as under : 5. We have considered the submissions of both the sides. On a query from the Bench, learned Advocate fairly mentioned that the appellant had not requested for cross examination of Shri R.K. Gupta who has explained his modus opemndi in detail. The adjudicating authority has given a specific finding that it is crystal clear from the statement of Shri R.K. Gupta that no goods were transported to the buyers who only received the invoices which were fictitious inasmuch as the invoices contained bogus entry. We agree with the learned JDR that the defacement of the invoices by the Range Officer does not give the invoices legality which lacked from the beginning as no goods were accompanied with those invoices. In view of this, the appellants were not eligible to take cenvat credit. We, therefore, uphold the disallowance of the cenvat credit. However, we agree with the learned advocate that the penalty imposed is on the higher side.
In our view, the principles of natural justice will be met if the appellants are directed to pay the penalty of Rs. 1 lakh. We order accordingly. The appeal is disposed of in the above terms.
4. The Additional Commissioner in the discussions and findings portion of his order dated 28-3-2002 had held as under : I find that the main issue in this case is that the party had taken modvat credit on the invoices issued by M/s. R.K. Enterprises without physically/actually receiving the goods in their factory.
This fact is sufficiently corroborative on the strength of the statement of Shri R.K. Gupta, Proprietor of M/s. R.K. Enterprises, tendered under Section 14 of the Central Excise Act, 1944 that the transport companies mentioned on the G.R. Books were fictitious and were used to cover the bogus transactions of delivery of goods, so sold by him. From this very statement, it is crystal clear that no goods were transported to the buyers and as such the buyer i.e. the party had not received any goods but they received only the invoices which were itself fictitious inasmuch as the invoices contained the bogus entries such as "means of transportation" and "time of clearance", etc. Therefore, the party's contention at the time of personal hearing that they had received the goods along with the invoices fall flat on its face.
5. The Commissioner (Appeals) had dismissed the appeal and confirmed the order of the Additional Commissioner made on 6-8-2002 in Paragraphs 5(a) and (e) of his order. It was held as under : 5(a) Mr. R.K. Gupta (Prop. M/s. R.K. Enterprises) had no godown or storage place for excisable goods and has obtained Central Excise Registration as a dealer by just fictitiously declaring some premises as taken by him on rent, without taking over physical possession of the rented premises. He indulged in keeping G.R. books got printed by him in the name of transport companies which did not exist, issuing G.Rs to cover bogus transactions. Shri. R.K. Gupta admitted that in cases of modvatable invoices/bogus transactions, payments were made through cheques and his sellers used to give him cash equivalent to amount shown in cheques. He admittedly used to sell invoices to his customers and his customers used to give him cheque to cover the transaction in turn of which Shri R.K. Gupta used to give cash money.
5 (e) Since M/s. R.K. Enterprises/Shri R.K. Gupta, apparently had no godown/premises for day to day practical use to keep, store, receive, send excisable goods against genuine modvatable invoices and appellant No. 1 did not take reasonable steps under Rule 173Q of Central Excise Rules, 1944 and took inadmissible modvat credit against unacceptable invoices of M/s. R.K. Enterprises, all of these were involved in fraud and collusion inasmuch as the modvat credit was passed/availed for ulterior motives with intent to evade duty of excise which was otherwise payable by appellant No 1 had they not taken wrong and "admissible modvat/cenvat credit.
6. It is clear that the Tribunal had confirmed the concurrent findings of the authorities below after considering the submissions of both sides in the aforesaid Paragraph 5 of its final order. The learned Counsel for the applicants tried to rely on certain portions of the cross-examination which are reproduced in the application asking us to re-appreciate the evidence which cannot be done in a ROM application when there is no mistake apparent from the record of the impugned decision. It was also tried to be submitted that in another case of similar nature, the Tribunal had taken a different view and reliance was placed on the decision rendered on 3-8-2005 in Appeal No. E/606 and 618/04-NB(C). Even if in a subsequent judgment a different view was taken by the Tribunal (when the earlier judgment was not pointed out), that cannot be a ground for entertaining a rectification application when there was no mistake apparent on the face of the Tribunal's order.
This application under Section 35C(2) of the Central Excise Act is wholly misconceived, and is, therefore, rejected.