Delhi High Court
Commissioner Of Central Excise vs Priyadarshini Cable Ltd. on 28 January, 2005
Bench: S Kumar, M B Lokur
ORDER
1. We may notice that the present appeal has been filed after a delay of 169 days for which hardly any cogent reason has been stated in the application. Be that as it may, we would allow the said application and consider the merits of the appeal. CM is, accordingly, disposed of.
2. This is an appeal under Section 35H(1) of the Central Excise Act, 1944 (hereinafter referred to as the Act) is directed against the order passed by the Custom, Excise and Gold (Control) Appellate Tribunal on 28th February, 2003. Rather then referring to the facts of the case we would prefer to the finding recorded by the Tribunal which reads as under:-
''3. We find that in respect of the same issue where the department confirmed the duty demand in respect of M/s R.S. Industries and others who availed the credit on the strength of invoice issued by M/s. Prerna Metal Industries, the Tribunal vide Final Order No.1167-1178/02-NB dated 22.11.2002 has allowed the appeals filed by M/s. R.S. Industries. The Tribunal has held as under:-
4. 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 Industries had bought material from Delhi Aluminum 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 payin 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 he Revenue has confirmed the demand of duty against CEAC 4/2005 page 2 of 5Prerna Metal Inds. 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 recovery of Credit taken on account of error, omission or misconstruction on the prt of officer or manufacturer or an assessed. As far as the appellants are concerned there was neither any error nor any misconstruction on the part of officer or manufacturer or an assessed. As far as the Appellants are concerned there was neither any eror 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 invokable irrespective of the fact that fraud has not been committed by the appellants. It is evidet from the impugned Order that the appellants have not committed any fraud, suppression, or willful misstatement as the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants. Rue 57I(1) (ii) clearly provides that where a manufacturer has taken a credit by reason of fraud, willful 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 xtended 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.''
3. The basic contention raised on behalf of the Appellant before us now is that the mere receipt of goods per say would not amount to CEAC 4/2005 page 3 of 5 admission of a fact that documents were produced and the assessed was entitled to the benefit granted to them under the said impugned order.
4. The plea of the Department was that M/s Prerna Metal Industries had taken the Modvat credit on the basis of fake and bogus invoice. This plea of the Department is in apparent contradiction to the concession given by the Department. It is clear from the bare reading of the findings recorded in the impugned order. We may also notic here that the infact no ground has been taken in the present appeal that any concession recorded in the said order was not given by the Department and or the same was not factually correct. It is clear from the order itself that invoices which containe duty paying particulars of the Modvat credit were mentioned on the documents relating to the receipt of goods. The receipt of goods was not denied by the Department.
5. In these circumstances, no question of law, much less a substantial question of law, arises for consideration before us. The appeal relates to factual aspects which have been concluded by the Authorities in favor of the assessed.
6. We find no merit in the appeal. The same is dismissed.
