ORDER
Jyoti Balasundaram, Member (J).
1. The above appeals arise out of the order of the Commissioner of Central Excise, Mumbai confirming a duty demand of Rs. 1,30,26,929/-against M/s. Shivai Barrels Manufacturing Co. Pvt. Ltd., by disallowing modvat credit and directing recovery thereof, of the above amount under Rule 571(1)(ii) of the Central Excise Rules, 1944, imposing penalty equal to duty under Rule 571(4), confirming interest @ 20% under Rule 571(5) and imposing penalty of Rs. 15 lakhs on the Director of the manufacturing unit under Rule 209A and penalties of amount^set out in the annexure to this order on dealers of the manufacturer, in terms of Rule 173Q(1)(bbb). The ground for confirmation of duty is that the manufacturer took credit on goods described as coils in the invoices while what they received was sheets. In other words the main charge against the manufacturer is that there is no co-relation between the inputs supplied and the form in which the inputs reached their factory.
2. We have heard both sides.
3. We note that in the case of Dhimant Trading Co. v. CCE, Mumbai 2003 (189) ELT 421 involving identical issue, the Tribunal has directed the Commissioner to pass orders on the eligibility of manufacturer to credit based upon quantitative co-relation. The relevant paragraphs of the Tribunal’s order are reproduced below.
“7. As we understand it, this circular requires that correlation be established between the number of sheets obtained from a coil and the coil which is obtained from the cutters after cutting. The object of the challans is to ensure this correlation. Now, where the invoices issued by the dealers for one coil, as long as the total weight of the sheets which is obtained after cutting and decoiling tallies with the weight of the coil, the correlation required in the circular is established. It is not contended that there is any loss of material due to cutting and decoiling. In cases where the invoices are for more than one coil, the same principle will have to be followed i,e. the total number of sheets obtained by decoiling must be shown to tally with the total number of sheets after decoiling. The trade notice does not require specific correlation between a coil and any one out of the sheets obtained from one coil. Except in terms of weight, correlation between the sheets and coils is in fact not possible. We were informed that the coils do not bear upon them throughout their length any numbers or identifying marks. We were informed that the primary manufacturers paint at the outer end of the coil with a number. Therefore, where a coil is cut these numbers on all but one sheet will be available, if at all it has not been obliterated as a result of various handling operation, only on one sheet. Having regard to the nature of the goods, a closer correlation would be impossible.
“8. Such correlation is in fact what is generally achieved in any larger number of cases, where the goods are received in large number Sheets received by a manufacturer of automobile bolts, nuts and innumerable items fastener used as inputs do not bear upon them identifying marks, and the only correlation that is possible and which is accepted by it is the accounts maintained by the manufacturer of the use and the final product. Thus, to continue the example, bolts and nuts received in large quantities by manufacturer of machinery do not bear upon them individual number. Correlation with the finished product can only be established by the total number of bolts or nuts used in the finished machine. While the Commissioner keeps repeatedly referring in his order, to his view that the “most liberal” of the Tribunal’s orders to ask for correlation, he does not cite any decision which requires a greater correlation than this in respect of such goods. In other words, except for cases where the inputs bear a specific identification mark, such as a serial number, specific physical correlation between that input and its use in the manufacture of finished product. To take a case of a motor vehicle which contains a large number of parts, such as gear wheels, rotary engine blocks, axial, steering assembly, control, etc., none of these components presence in a motor vehicle can physically be correlated with the stock received by the manufacturer of that motor vehicle. This was in fact emphasised by the Tribunal in its decision in Standard Industries v. CCE, 2001 (136) E.L.T. 124 with regard to goods received in bulk. The Tribunal emphasised therein that in case of such bulk cargo correlation by means of physical identity is impossible to establish. No hard and fast rule can therefore be laid down as to the criteria for establishing the correlation between the inputs and finished products. Thus the criteria to be adopted would depend on the facts of a particular case.”
4. The Tribunal also directed that the liability to penalty, if any, on the manufacturer will depend upon the extent of credit that is denied after the exercise of co-relation is carried out by the Commissioner. The defence in that case as well as in the present one is that the coils purchased from dealers were sent directly to slitters / cutters for slitting into sheets and that what was received in the factory premises of M/s. Shivai Barrels Manufacturing Company Private Limited were the sheets from the slitters/cutters. The Tribunal’s order cited supra has been followed in the case of Western Trading & Others, Order No. CI/2320-23/WZB/2001 dated 10/10/2003.
5. Since identical issue has already been decided, as seen from above, we follow the same course in the present batch of cases also, set aside the impugned order and allow the appeals by way of remand to the Commissioner for quantitative co-relation as regards M/s. Shivai Barrels Manufacturing Company Private Limited. The liability to penalty, if any, on Shivai Barrels Manufacturing Company Private Limited will depend upon the extent of credit that is denied after co-relation is carried out.
6. As far as the dealers are concerned, although in the orders referred to herein above penalty has been set aside, in these appeals we see force in the submission of the learned JCDR that their liability to penalty may also be left open for decision by the Commissioner in view of the fact that show cause notice alleges that while modvat invoices issued under Rule 57G by the registered dealers showed loading and despatch of CR coils of a particular weight, and despatch has been shown in a particular vehicle, investigations revealed that the vehicles mentioned in the invoices were not used for transportation of the goods, CR coils of the description and weight were never loaded on the vehicles mentioned in the invoices of the dealers, and further in view of the allegation in the notice that the time of despatch of CR coils has been fictitiously mentioned in the dealers’ invoice, and the finding in para 53 of the impugned order that the wrong time of despatch and wrong lorry number mentioned in such invoices strongly suggest that the dealers deliberately tried to suppress the entire operation. We therefore leave open the issue of penal action against dealers to the Commissioner for decision. Fresh orders are to be passed by him after extending a reasonable opportunity of hearing to the manufacturer and the dealers.
7. The appeals are thus allowed by remand.
(Operative part pronounced in the Court) Annexure ______________________________________________________________________________________ S.No. Appeal No. Appellant Penalty (Rs. ) _______________________________________________________________________________________ 1. E/3711/2001-Mum Mohanlal Harjeevandas 70,000/- 2. E/3713/2001-Mum Dhimant Trading Company 5,000/- 3. E/3761/2001-Mum Royal Trading Company 25,000/- 4. E/135/2002-Mum Rahul Metals 6,00,000/- 5. E/174/2002-Mum Maldar Barrels Pvt. Ltd. 60,000/- 6. E/368/2002-Mum Steel Trading Corporation 1,20,000/- 7. E/370/2002-Mum Mehta Enterprises 70,000/- 8. E/45872002-Mimi Kunal Corporation 20,00,000/- 9. E/477/2002/Mum Ispat Steel Synticate 2,50,000/- 10. E7478/2002-Mum Vikram Barrels Pvt. Ltd. 25,00,000/- 11. E747972002-Mum Swastik Engineers & 50,000/- Fabricators 12. E/49272002-Mum Darpan Trading Company 1,00,000/- 13. E/506/2002-Mum Sanghvi International 1,50,000/- 14. E/543/2002-Mum Surendrakumar & 20,000/- Company 15. E/554/2002-Mum Steel Centre 5,000/- 16. E/572/2002-Mum Bhaskar Mehta & Company 5,000/- 17. E7579/2002-Mum Dhakalia Steel Corporation 10,000/- _______________________________________________________________________________________