R.S. Industries, Paper Vs. Cce Semantic Analysis

Semantic Analysis by spaCy

R.S. Industries, Paper Vs. Cce

Decided On : Nov-29-2002

Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]Code Context

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			'judgement' => ' 1. In these 12 appeals, arising out of a common Order-in-Original No.41/2001 dated 30.10.2001 passed by the Commissioner, Central Excise, Delhi-I, the common issue involved is whether the Modvat Credit is to be disallowed to all the appellants on the ground that the supplier of the inputs has taken the Modvat Credit on fake and bogus invoices and utilized the said Credit towards payment of duty in respect of inputs supplied to the appellants.</p><p align="justify">2. We heard Shri Naveen Mullick, Shri Kamaljeet Singh, and Shri V.K.Gupta, learned Advocates who appeared on behalf of different appellants. Shri Naveen Mullick, learned Advocate, submitted that the appellants availed of Modvat Credit of the duty paid on the inputs received from the suppliers; that one of the suppliers of inputs is M/s. Prerna Metal Industries; that the inquiries initiated against the said Prerna Metal Industry revealed that they had taken the Modvat Credit on the strength of the invoices which were fake and bogus and were never issued to M/s. Prerna Metal Industry by any of the firms whose name were mentioned in the invoices; that the Commissioner under the impugned Order has disallowed the Modvat Credit amounting to Rs. 46,78,462 to M/s. Prerna Metal Industry and ordered to recover the amount of Rs. 43,99,947 passed as illegal Central Excise duty to various buyers besides imposing penalty on Prerna Metal Inds.; that the Commissioner has also disallowed the Modvat Credit availed by all the appellants on the basis of invoices issued by Prerna Metal Inds. on the ground that as the Credit was wrongly availed of by Prerna Metal Industries, the goods cleared by them to the appellants have to be treated as cleared without payment of appropriate duty; that, however, the Commissioner has not imposed any penalty on the appellants. The learned Advocate, further, submitted that the allegation, contained against the appellants, in para 24 of the show cause notice dated 24.7.2000, was that the appellants had received only invoices which did not cover any goods; that, however, the said allegation has been dropped by the Commissioner in the impugned Order holding that "the show cause notice has been failed to establish beyond doubt that the parties who had availed of Modvat Credit on the basis of invoices issued by Prerna Metal have not received any material against the said invoices. It has been vaguely alleged that no material has been supplied by Prerna Metal to these buyers. In para 10 of the show cause notice it has been stated that Prerna Metal had brought material from Delhi Aluminium Corporation and had made payment to them. The payments are of substantial nature. It has not been clear from the show cause notice to whom the final product manufactured out of this material has been supplied or there was no material purchase at all. In view of the above it is evident that the buyers who had purchased material from Prerna Metal might have received the goods along with the statutory invoices of course without payment of duty." 3. Shri Naveen Mullick, learned Advocate, also mentioned that the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants in the fraud committed by Prerna Metal Inds.; that in view of this finding the Commissioner has not imposed any penalty on any of the Appellants who had purchased from Prerna Metal and have availed Modvat Credit; that in view of this specific finding of the Commissioner the Modvat Credit availed of by them cannot be disallowed and the recovery of the same cannot be ordered; that moreover the inputs were received by them under the cover of invoices containing duty particulars. The inputs are liable to duty and if any fraud had been played by the supplier of the inputs, the Modvat Credit cannot be denied to them; that further, the department had confirmed the demand of duty in respect of goods received by them against Prerna Metal Inds. He finally mentioned that extended period of limitation cannot be invoked in view of the specific finding of the Commissioner of no evidence such as active involvement of the appellants. He relied upon the decision in the case of CCE v.H.M.M. Ltd.(SC) and Arsh Casting P. Ltd. v. CCE, Chandigarh, 1996 (81) ELT 276 (T). Shri Kamaljeet Singh and Shri V.K.Gupta also made the similar submissions in respect of appellants represented by them.</p><p align="justify">4. Countering the arguments Smt. Charu Baranwal, learned SDR submitted that it has been held by the Commissioner in the impugned Order that Prerna Metal Inds. did not receive the goods and availed the Modvat Credit on the basis of fake and bogus invoices; that the Credit so wrongly availed by Prerna Metal was utilized towards payment of duty on the goods supplied to the Appellants; that since the Credit itself was not available to Prerna Metal Indus., the goods supplied to the Appellants by utilizing such credit becomes non-duty paid goods; that, therefore, the inputs were cleared by Prerna Metal Inds. without payment of duty and accordingly no credit can be availed of by the Appellants as no duty has been paid. She also mentioned that the Commissioner has also dealt with the aspect as to whether the demand of duty from Prerna Metal as well as from the appellants would amount to double demand; that the Commissioner has given his specific finding that no duty had been paid by Prerna Metal on the goods cleared, and therefore, the duty demanded from Prerna Metal cannot be allowed as Modvat Credit to the buyers who had purchased material from Prerna Metal and as such there is no double demand of duty; that the appellants are at liberty to seek legal remedy against Prerna Metal.</p><p align="justify">Finally she submitted the extended period of limitation is invocable against the appellants as the fraud was committed for taking Modvat Credit by Prerna Metal Inds. and utilizing the same towards payment of duty on the goods cleared to the appellants; the fraud can be committed by any person and need not be committed by the person against whom the demand of duty is being confirmed.</p><p align="justify">5. We have considered the submissions of both the sides. The Revenue has not challenged the findings contained in the impugned Order to the effect that the allegation of non-receipt of goods by the Appellants has not been established beyond doubt in view of the fact that Prerna Metal Indus, had bought material from Delhi Aluminium Corporation which was substantial in nature. Once the Revenue is not disputing the receipt of goods under the cover of invoices by the appellants which contained duty paying particulars the Modvat Credit cannot be denied to the appellants. As far as the appellants are concerned they have purchased the goods which are dutiable on the strength of the invoices carrying duty payment particulars. Moreover the Revenue has confirmed the demand of duty against Prerna Metal Indus, in respect of goods removed by them by utilizing wrongly availed Modvat Credit. We also observe that Rule 571 of the central Excise Rules, 1944 at the time when the show cause notice was issued, provided for the recovery of Credit taken on account of error, omission or misconstruction on the part of officer or manufacturer or an assessees. As far as the appellants are concerned there was neither any error nor any misconstruction on their part. We also do not find any substance in the submission of the learned SDR that larger period of limitation will be invocable irrespective of the fact that fraud has not been committed by the appellants. It is evident from the impugned Order that the appellants have not committed any fraud, suppression, or wilful mis-statement as the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants. Rule 571(1) (ii) clearly provides that where a manufacturer has taken a credit by reason of fraud wilful mis-statement, collusion or suppression of fact or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty extended period of 5 years will be available for issuing show cause notice. It is apparent from the wordings of Clause (ii) that fraud etc. has to be committed by the person against whom the show cause notice is being issued and not by the person at large. We, therefore, set aside the disallowance of the Modvat Credit and recovery of the said amount from the appellants. All the appeals are thus allowed.',
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Prerna Metal Industries; that the inquiries initiated against the said Prerna Metal Industry revealed that they had taken the Modvat Credit on the strength of the invoices which were fake and bogus and were never issued to M/s. Prerna Metal Industry by any of the firms whose name were mentioned in the invoices; that the Commissioner under the impugned Order has disallowed the Modvat Credit amounting to Rs. 46,78,462 to M/s. Prerna Metal Industry and ordered to recover the amount of Rs. 43,99,947 passed as illegal Central Excise duty to various buyers besides imposing penalty on Prerna Metal Inds.; that the Commissioner has also disallowed the Modvat Credit availed by all the appellants on the basis of invoices issued by Prerna Metal Inds. on the ground that as the Credit was wrongly availed of by Prerna Metal Industries, the goods cleared by them to the appellants have to be treated as cleared without payment of appropriate duty; that, however, the Commissioner has not imposed any penalty on the appellants. The learned Advocate, further, submitted that the allegation, contained against the appellants, in para 24 of the show cause notice dated 24.7.2000, was that the appellants had received only invoices which did not cover any goods; that, however, the said allegation has been dropped by the Commissioner in the impugned Order holding that "the show cause notice has been failed to establish beyond doubt that the parties who had availed of Modvat Credit on the basis of invoices issued by Prerna Metal have not received any material against the said invoices. It has been vaguely alleged that no material has been supplied by Prerna Metal to these buyers. In para 10 of the show cause notice it has been stated that Prerna Metal had brought material from Delhi Aluminium Corporation and had made payment to them. The payments are of substantial nature. It has not been clear from the show cause notice to whom the final product manufactured out of this material has been supplied or there was no material purchase at all. In view of the above it is evident that the buyers who had purchased material from Prerna Metal might have received the goods along with the statutory invoices of course without payment of duty." 3. Shri Naveen Mullick, learned Advocate, also mentioned that the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants in the fraud committed by Prerna Metal Inds.; that in view of this finding the Commissioner has not imposed any penalty on any of the Appellants who had purchased from Prerna Metal and have availed Modvat Credit; that in view of this specific finding of the Commissioner the Modvat Credit availed of by them cannot be disallowed and the recovery of the same cannot be ordered; that moreover the inputs were received by them under the cover of invoices containing duty particulars. The inputs are liable to duty and if any fraud had been played by the supplier of the inputs, the Modvat Credit cannot be denied to them; that further, the department had confirmed the demand of duty in respect of goods received by them against Prerna Metal Inds. He finally mentioned that extended period of limitation cannot be invoked in view of the specific finding of the Commissioner of no evidence such as active involvement of the appellants. He relied upon the decision in the case of CCE v.H.M.M. Ltd.(SC) and Arsh Casting P. Ltd. v. CCE, Chandigarh, 1996 (81) ELT 276 (T). Shri Kamaljeet Singh and Shri V.K.Gupta also made the similar submissions in respect of appellants represented by them.</p><p align="justify">4. Countering the arguments Smt. Charu Baranwal, learned SDR submitted that it has been held by the Commissioner in the impugned Order that Prerna Metal Inds. did not receive the goods and availed the Modvat Credit on the basis of fake and bogus invoices; that the Credit so wrongly availed by Prerna Metal was utilized towards payment of duty on the goods supplied to the Appellants; that since the Credit itself was not available to Prerna Metal Indus., the goods supplied to the Appellants by utilizing such credit becomes non-duty paid goods; that, therefore, the inputs were cleared by Prerna Metal Inds. without payment of duty and accordingly no credit can be availed of by the Appellants as no duty has been paid. She also mentioned that the Commissioner has also dealt with the aspect as to whether the demand of duty from Prerna Metal as well as from the appellants would amount to double demand; that the Commissioner has given his specific finding that no duty had been paid by Prerna Metal on the goods cleared, and therefore, the duty demanded from Prerna Metal cannot be allowed as Modvat Credit to the buyers who had purchased material from Prerna Metal and as such there is no double demand of duty; that the appellants are at liberty to seek legal remedy against Prerna Metal.</p><p align="justify">Finally she submitted the extended period of limitation is invocable against the appellants as the fraud was committed for taking Modvat Credit by Prerna Metal Inds. and utilizing the same towards payment of duty on the goods cleared to the appellants; the fraud can be committed by any person and need not be committed by the person against whom the demand of duty is being confirmed.</p><p align="justify">5. We have considered the submissions of both the sides. The Revenue has not challenged the findings contained in the impugned Order to the effect that the allegation of non-receipt of goods by the Appellants has not been established beyond doubt in view of the fact that Prerna Metal Indus, had bought material from Delhi Aluminium Corporation which was substantial in nature. Once the Revenue is not disputing the receipt of goods under the cover of invoices by the appellants which contained duty paying particulars the Modvat Credit cannot be denied to the appellants. As far as the appellants are concerned they have purchased the goods which are dutiable on the strength of the invoices carrying duty payment particulars. Moreover the Revenue has confirmed the demand of duty against Prerna Metal Indus, in respect of goods removed by them by utilizing wrongly availed Modvat Credit. We also observe that Rule 571 of the central Excise Rules, 1944 at the time when the show cause notice was issued, provided for the recovery of Credit taken on account of error, omission or misconstruction on the part of officer or manufacturer or an assessees. As far as the appellants are concerned there was neither any error nor any misconstruction on their part. We also do not find any substance in the submission of the learned SDR that larger period of limitation will be invocable irrespective of the fact that fraud has not been committed by the appellants. It is evident from the impugned Order that the appellants have not committed any fraud, suppression, or wilful mis-statement as the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants. Rule 571(1) (ii) clearly provides that where a manufacturer has taken a credit by reason of fraud wilful mis-statement, collusion or suppression of fact or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty extended period of 5 years will be available for issuing show cause notice. It is apparent from the wordings of Clause (ii) that fraud etc. has to be committed by the person against whom the show cause notice is being issued and not by the person at large. We, therefore, set aside the disallowance of the Modvat Credit and recovery of the said amount from the appellants. All the appeals are thus allowed.',
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			(int) 1 => 'the Modvat Credit',
			(int) 2 => 'the Modvat Credit',
			(int) 3 => 'Credit',
			(int) 4 => 'Advocate',
			(int) 5 => 'Modvat Credit',
			(int) 6 => 'Prerna Metal Industry',
			(int) 7 => 'the Modvat Credit',
			(int) 8 => 'M/s. Prerna Metal Industry',
			(int) 9 => 'the Modvat Credit',
			(int) 10 => 'M/s. Prerna Metal Industry',
			(int) 11 => 'Prerna Metal Inds',
			(int) 12 => 'the Modvat Credit',
			(int) 13 => 'Credit',
			(int) 14 => 'Prerna Metal Industries',
			(int) 15 => 'Modvat Credit',
			(int) 16 => 'Delhi Aluminium Corporation',
			(int) 17 => 'Prerna Metal',
			(int) 18 => 'Advocate',
			(int) 19 => 'Prerna Metal',
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			(int) 21 => 'the Modvat Credit',
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			(int) 23 => 'CCE',
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			(int) 36 => 'Modvat Credit',
			(int) 37 => 'Prerna Metal',
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			(int) 44 => 'SDR',
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		),
		'PERSON' => array(
			(int) 0 => 'Delhi-I',
			(int) 1 => 'Naveen Mullick',
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			(int) 8 => 'Naveen Mullick',
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			(int) 12 => 'H.M.M. Ltd.(SC',
			(int) 13 => 'Chandigarh',
			(int) 14 => 'Shri Kamaljeet Singh',
			(int) 15 => 'Charu Baranwal',
			(int) 16 => 'Prerna Metal',
			(int) 17 => 'Prerna Metal Indus',
			(int) 18 => 'Prerna Metal Inds',
			(int) 19 => 'Appellants',
			(int) 20 => 'Prerna Metal',
			(int) 21 => 'Prerna Metal',
			(int) 22 => 'Prerna Metal Inds',
			(int) 23 => 'Order',
			(int) 24 => 'Prerna Metal Indus',
			(int) 25 => 'Prerna Metal Indus',
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		),
		'PRODUCT' => array(
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		),
		'DATE' => array(
			(int) 0 => '1996',
			(int) 1 => '1944',
			(int) 2 => '5 years'
		),
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		),
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		'Judgement' => array(
			'id' => '29492',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'R.S. Industries, Paper',
			'authreffered' => null,
			'casename' => 'R.S. Industries, Paper Vs. Cce',
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			'court' => 'Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi',
			'court_type' => 'TRI',
			'decidedon' => '2002-11-29',
			'deposition' => null,
			'favorof' => '',
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			'judge' => 'S Kang, A T V.K.',
			'judgement' => ' 1. In these 12 appeals, arising out of a common Order-in-Original No.41/2001 dated 30.10.2001 passed by the Commissioner, Central Excise, Delhi-I, the common issue involved is whether the Modvat Credit is to be disallowed to all the appellants on the ground that the supplier of the inputs has taken the Modvat Credit on fake and bogus invoices and utilized the said Credit towards payment of duty in respect of inputs supplied to the appellants.</p><p align="justify">2. We heard Shri Naveen Mullick, Shri Kamaljeet Singh, and Shri V.K.Gupta, learned Advocates who appeared on behalf of different appellants. Shri Naveen Mullick, learned Advocate, submitted that the appellants availed of Modvat Credit of the duty paid on the inputs received from the suppliers; that one of the suppliers of inputs is M/s. Prerna Metal Industries; that the inquiries initiated against the said Prerna Metal Industry revealed that they had taken the Modvat Credit on the strength of the invoices which were fake and bogus and were never issued to M/s. Prerna Metal Industry by any of the firms whose name were mentioned in the invoices; that the Commissioner under the impugned Order has disallowed the Modvat Credit amounting to Rs. 46,78,462 to M/s. Prerna Metal Industry and ordered to recover the amount of Rs. 43,99,947 passed as illegal Central Excise duty to various buyers besides imposing penalty on Prerna Metal Inds.; that the Commissioner has also disallowed the Modvat Credit availed by all the appellants on the basis of invoices issued by Prerna Metal Inds. on the ground that as the Credit was wrongly availed of by Prerna Metal Industries, the goods cleared by them to the appellants have to be treated as cleared without payment of appropriate duty; that, however, the Commissioner has not imposed any penalty on the appellants. The learned Advocate, further, submitted that the allegation, contained against the appellants, in para 24 of the show cause notice dated 24.7.2000, was that the appellants had received only invoices which did not cover any goods; that, however, the said allegation has been dropped by the Commissioner in the impugned Order holding that "the show cause notice has been failed to establish beyond doubt that the parties who had availed of Modvat Credit on the basis of invoices issued by Prerna Metal have not received any material against the said invoices. It has been vaguely alleged that no material has been supplied by Prerna Metal to these buyers. In para 10 of the show cause notice it has been stated that Prerna Metal had brought material from Delhi Aluminium Corporation and had made payment to them. The payments are of substantial nature. It has not been clear from the show cause notice to whom the final product manufactured out of this material has been supplied or there was no material purchase at all. In view of the above it is evident that the buyers who had purchased material from Prerna Metal might have received the goods along with the statutory invoices of course without payment of duty." 3. Shri Naveen Mullick, learned Advocate, also mentioned that the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants in the fraud committed by Prerna Metal Inds.; that in view of this finding the Commissioner has not imposed any penalty on any of the Appellants who had purchased from Prerna Metal and have availed Modvat Credit; that in view of this specific finding of the Commissioner the Modvat Credit availed of by them cannot be disallowed and the recovery of the same cannot be ordered; that moreover the inputs were received by them under the cover of invoices containing duty particulars. The inputs are liable to duty and if any fraud had been played by the supplier of the inputs, the Modvat Credit cannot be denied to them; that further, the department had confirmed the demand of duty in respect of goods received by them against Prerna Metal Inds. He finally mentioned that extended period of limitation cannot be invoked in view of the specific finding of the Commissioner of no evidence such as active involvement of the appellants. He relied upon the decision in the case of CCE v.H.M.M. Ltd.(SC) and Arsh Casting P. Ltd. v. CCE, Chandigarh, 1996 (81) ELT 276 (T). Shri Kamaljeet Singh and Shri V.K.Gupta also made the similar submissions in respect of appellants represented by them.</p><p align="justify">4. Countering the arguments Smt. Charu Baranwal, learned SDR submitted that it has been held by the Commissioner in the impugned Order that Prerna Metal Inds. did not receive the goods and availed the Modvat Credit on the basis of fake and bogus invoices; that the Credit so wrongly availed by Prerna Metal was utilized towards payment of duty on the goods supplied to the Appellants; that since the Credit itself was not available to Prerna Metal Indus., the goods supplied to the Appellants by utilizing such credit becomes non-duty paid goods; that, therefore, the inputs were cleared by Prerna Metal Inds. without payment of duty and accordingly no credit can be availed of by the Appellants as no duty has been paid. She also mentioned that the Commissioner has also dealt with the aspect as to whether the demand of duty from Prerna Metal as well as from the appellants would amount to double demand; that the Commissioner has given his specific finding that no duty had been paid by Prerna Metal on the goods cleared, and therefore, the duty demanded from Prerna Metal cannot be allowed as Modvat Credit to the buyers who had purchased material from Prerna Metal and as such there is no double demand of duty; that the appellants are at liberty to seek legal remedy against Prerna Metal.</p><p align="justify">Finally she submitted the extended period of limitation is invocable against the appellants as the fraud was committed for taking Modvat Credit by Prerna Metal Inds. and utilizing the same towards payment of duty on the goods cleared to the appellants; the fraud can be committed by any person and need not be committed by the person against whom the demand of duty is being confirmed.</p><p align="justify">5. We have considered the submissions of both the sides. The Revenue has not challenged the findings contained in the impugned Order to the effect that the allegation of non-receipt of goods by the Appellants has not been established beyond doubt in view of the fact that Prerna Metal Indus, had bought material from Delhi Aluminium Corporation which was substantial in nature. Once the Revenue is not disputing the receipt of goods under the cover of invoices by the appellants which contained duty paying particulars the Modvat Credit cannot be denied to the appellants. As far as the appellants are concerned they have purchased the goods which are dutiable on the strength of the invoices carrying duty payment particulars. Moreover the Revenue has confirmed the demand of duty against Prerna Metal Indus, in respect of goods removed by them by utilizing wrongly availed Modvat Credit. We also observe that Rule 571 of the central Excise Rules, 1944 at the time when the show cause notice was issued, provided for the recovery of Credit taken on account of error, omission or misconstruction on the part of officer or manufacturer or an assessees. As far as the appellants are concerned there was neither any error nor any misconstruction on their part. We also do not find any substance in the submission of the learned SDR that larger period of limitation will be invocable irrespective of the fact that fraud has not been committed by the appellants. It is evident from the impugned Order that the appellants have not committed any fraud, suppression, or wilful mis-statement as the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants. Rule 571(1) (ii) clearly provides that where a manufacturer has taken a credit by reason of fraud wilful mis-statement, collusion or suppression of fact or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty extended period of 5 years will be available for issuing show cause notice. It is apparent from the wordings of Clause (ii) that fraud etc. has to be committed by the person against whom the show cause notice is being issued and not by the person at large. We, therefore, set aside the disallowance of the Modvat Credit and recovery of the said amount from the appellants. All the appeals are thus allowed.',
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		(int) 5 => 'Prerna Metal',
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		(int) 7 => 'Prerna Metal',
		(int) 8 => 'Naveen Mullick',
		(int) 9 => 'Prerna Metal Inds',
		(int) 10 => 'Appellants',
		(int) 11 => 'Prerna Metal Inds',
		(int) 12 => 'H.M.M. Ltd.(SC',
		(int) 13 => 'Chandigarh',
		(int) 14 => 'Shri Kamaljeet Singh',
		(int) 15 => 'Charu Baranwal',
		(int) 16 => 'Prerna Metal',
		(int) 17 => 'Prerna Metal Indus',
		(int) 18 => 'Prerna Metal Inds',
		(int) 19 => 'Appellants',
		(int) 20 => 'Prerna Metal',
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	'DATE' => array(
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	),
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		'judge' => 'S Kang, A T V.K.',
		'judgement' => ' 1. In these 12 appeals, arising out of a common Order-in-Original No.41/2001 dated 30.10.2001 passed by the Commissioner, Central Excise, Delhi-I, the common issue involved is whether the Modvat Credit is to be disallowed to all the appellants on the ground that the supplier of the inputs has taken the Modvat Credit on fake and bogus invoices and utilized the said Credit towards payment of duty in respect of inputs supplied to the appellants.</p><p align="justify">2. We heard Shri Naveen Mullick, Shri Kamaljeet Singh, and Shri V.K.Gupta, learned Advocates who appeared on behalf of different appellants. Shri Naveen Mullick, learned Advocate, submitted that the appellants availed of Modvat Credit of the duty paid on the inputs received from the suppliers; that one of the suppliers of inputs is M/s. Prerna Metal Industries; that the inquiries initiated against the said Prerna Metal Industry revealed that they had taken the Modvat Credit on the strength of the invoices which were fake and bogus and were never issued to M/s. Prerna Metal Industry by any of the firms whose name were mentioned in the invoices; that the Commissioner under the impugned Order has disallowed the Modvat Credit amounting to Rs. 46,78,462 to M/s. Prerna Metal Industry and ordered to recover the amount of Rs. 43,99,947 passed as illegal Central Excise duty to various buyers besides imposing penalty on Prerna Metal Inds.; that the Commissioner has also disallowed the Modvat Credit availed by all the appellants on the basis of invoices issued by Prerna Metal Inds. on the ground that as the Credit was wrongly availed of by Prerna Metal Industries, the goods cleared by them to the appellants have to be treated as cleared without payment of appropriate duty; that, however, the Commissioner has not imposed any penalty on the appellants. The learned Advocate, further, submitted that the allegation, contained against the appellants, in para 24 of the show cause notice dated 24.7.2000, was that the appellants had received only invoices which did not cover any goods; that, however, the said allegation has been dropped by the Commissioner in the impugned Order holding that "the show cause notice has been failed to establish beyond doubt that the parties who had availed of Modvat Credit on the basis of invoices issued by Prerna Metal have not received any material against the said invoices. It has been vaguely alleged that no material has been supplied by Prerna Metal to these buyers. In para 10 of the show cause notice it has been stated that Prerna Metal had brought material from Delhi Aluminium Corporation and had made payment to them. The payments are of substantial nature. It has not been clear from the show cause notice to whom the final product manufactured out of this material has been supplied or there was no material purchase at all. In view of the above it is evident that the buyers who had purchased material from Prerna Metal might have received the goods along with the statutory invoices of course without payment of duty." 3. Shri Naveen Mullick, learned Advocate, also mentioned that the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants in the fraud committed by Prerna Metal Inds.; that in view of this finding the Commissioner has not imposed any penalty on any of the Appellants who had purchased from Prerna Metal and have availed Modvat Credit; that in view of this specific finding of the Commissioner the Modvat Credit availed of by them cannot be disallowed and the recovery of the same cannot be ordered; that moreover the inputs were received by them under the cover of invoices containing duty particulars. The inputs are liable to duty and if any fraud had been played by the supplier of the inputs, the Modvat Credit cannot be denied to them; that further, the department had confirmed the demand of duty in respect of goods received by them against Prerna Metal Inds. He finally mentioned that extended period of limitation cannot be invoked in view of the specific finding of the Commissioner of no evidence such as active involvement of the appellants. He relied upon the decision in the case of CCE v.H.M.M. Ltd.(SC) and Arsh Casting P. Ltd. v. CCE, Chandigarh, 1996 (81) ELT 276 (T). Shri Kamaljeet Singh and Shri V.K.Gupta also made the similar submissions in respect of appellants represented by them.</p><p align="justify">4. Countering the arguments Smt. Charu Baranwal, learned SDR submitted that it has been held by the Commissioner in the impugned Order that Prerna Metal Inds. did not receive the goods and availed the Modvat Credit on the basis of fake and bogus invoices; that the Credit so wrongly availed by Prerna Metal was utilized towards payment of duty on the goods supplied to the Appellants; that since the Credit itself was not available to Prerna Metal Indus., the goods supplied to the Appellants by utilizing such credit becomes non-duty paid goods; that, therefore, the inputs were cleared by Prerna Metal Inds. without payment of duty and accordingly no credit can be availed of by the Appellants as no duty has been paid. She also mentioned that the Commissioner has also dealt with the aspect as to whether the demand of duty from Prerna Metal as well as from the appellants would amount to double demand; that the Commissioner has given his specific finding that no duty had been paid by Prerna Metal on the goods cleared, and therefore, the duty demanded from Prerna Metal cannot be allowed as Modvat Credit to the buyers who had purchased material from Prerna Metal and as such there is no double demand of duty; that the appellants are at liberty to seek legal remedy against Prerna Metal.</p><p align="justify">Finally she submitted the extended period of limitation is invocable against the appellants as the fraud was committed for taking Modvat Credit by Prerna Metal Inds. and utilizing the same towards payment of duty on the goods cleared to the appellants; the fraud can be committed by any person and need not be committed by the person against whom the demand of duty is being confirmed.</p><p align="justify">5. We have considered the submissions of both the sides. The Revenue has not challenged the findings contained in the impugned Order to the effect that the allegation of non-receipt of goods by the Appellants has not been established beyond doubt in view of the fact that Prerna Metal Indus, had bought material from Delhi Aluminium Corporation which was substantial in nature. Once the Revenue is not disputing the receipt of goods under the cover of invoices by the appellants which contained duty paying particulars the Modvat Credit cannot be denied to the appellants. As far as the appellants are concerned they have purchased the goods which are dutiable on the strength of the invoices carrying duty payment particulars. Moreover the Revenue has confirmed the demand of duty against Prerna Metal Indus, in respect of goods removed by them by utilizing wrongly availed Modvat Credit. We also observe that Rule 571 of the central Excise Rules, 1944 at the time when the show cause notice was issued, provided for the recovery of Credit taken on account of error, omission or misconstruction on the part of officer or manufacturer or an assessees. As far as the appellants are concerned there was neither any error nor any misconstruction on their part. We also do not find any substance in the submission of the learned SDR that larger period of limitation will be invocable irrespective of the fact that fraud has not been committed by the appellants. It is evident from the impugned Order that the appellants have not committed any fraud, suppression, or wilful mis-statement as the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants. Rule 571(1) (ii) clearly provides that where a manufacturer has taken a credit by reason of fraud wilful mis-statement, collusion or suppression of fact or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty extended period of 5 years will be available for issuing show cause notice. It is apparent from the wordings of Clause (ii) that fraud etc. has to be committed by the person against whom the show cause notice is being issued and not by the person at large. We, therefore, set aside the disallowance of the Modvat Credit and recovery of the said amount from the appellants. All the appeals are thus allowed.',
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CARDINAL: 1, 12, 30.10.2001, one, 24, 24.7.2000, 10, 3, 81, 276, 571, 571(1

ORG: Central Excise, the Modvat Credit, the Modvat Credit, Credit, Advocate, Modvat Credit, Prerna Metal Industry, the Modvat Credit, M/s. Prerna Metal Industry, the Modvat Credit, M/s. Prerna Metal Industry, Prerna Metal Inds, the Modvat Credit, Credit, Prerna Metal Industries, Modvat Credit, Delhi Aluminium Corporation, Prerna Metal, Advocate, Prerna Metal, Modvat Credit, the Modvat Credit, the Modvat Credit, CCE, Arsh Casting P. Ltd., CCE, ELT, Smt, SDR, the Modvat Credit, Credit, Appellants, Credit, Appellants, Prerna Metal, Prerna Metal, Modvat Credit, Prerna Metal, Modvat Credit, Appellants, Delhi Aluminium Corporation, the Modvat Credit, Modvat Credit, Credit, SDR, the Modvat Credit

PERSON: Delhi-I, Naveen Mullick, Order, Prerna Metal Inds, Order, Prerna Metal, Prerna Metal, Prerna Metal, Naveen Mullick, Prerna Metal Inds, Appellants, Prerna Metal Inds, H.M.M. Ltd.(SC, Chandigarh, Shri Kamaljeet Singh, Charu Baranwal, Prerna Metal, Prerna Metal Indus, Prerna Metal Inds, Appellants, Prerna Metal, Prerna Metal, Prerna Metal Inds, Order, Prerna Metal Indus, Prerna Metal Indus, Order

PRODUCT: Central Excise

DATE: 1996, 1944, 5 years

WORK_OF_ART: Order that Prerna Metal Inds

NORP: Rules