{"id":128028,"date":"2008-07-23T00:00:00","date_gmt":"2008-07-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sheela-vs-unknown-on-23-july-2008"},"modified":"2018-05-18T15:07:08","modified_gmt":"2018-05-18T09:37:08","slug":"sheela-vs-unknown-on-23-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sheela-vs-unknown-on-23-july-2008","title":{"rendered":"Sheela vs Unknown on 23 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Sheela vs Unknown on 23 July, 2008<\/div>\n
Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nTAXAP\/197\/2008\t 10\/ 12\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nTAX\nAPPEAL No. 197 of 2008\n \n\n \n=========================================================\n\n\n \n\nSHEELA\nDYEING & PRINTING MILLSP. LTD. - Appellant(s)\n \n\nVersus\n \n\nTHE\nCOMMISSIONER OF CENTRAL EXCISE & CUSTOMS, SURAT-I - Opponent(s)\n \n\n===============================================================\nAppearance : \nMR\nHARDIK P MODH for Appellant(s) : 1, \nMR HARIN P RAVAL for\nOpponent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.A.MEHTA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\nDate\n: 23\/07\/2008 \n\n \n\nORAL\nORDER<\/pre>\n
(Per
\n: HONOURABLE MS.JUSTICE H.N.DEVANI)<\/p>\n
1\tThe
\nappellant-assessee has proposed the following two questions :\n<\/p>\n
a.\tWhether the Tribunal was
\nright in holding that the  Appellants failed to take reasonable steps
\nof Rule 7(2) when admittedly the Appellants received goods from
\nprincipal supplier  on job work  basis and principal supplier
\npurchased goods from the said Vendor?\n<\/p>\n
b.\tWhether Appellants are
\nliable for amount of duty  in a case where  goods were purchased by
\nthe principle  Supplier and not by the Appellants?\n<\/p>\n
2.
\nThe facts in brief are that the appellant-assessee, at the relevant
\ntime, was engaged in manufacturing processed fabrics on job-work
\nbasis. During the course of its business, in June 2003, the appellant
\nhad undertaken job work from one M\/s Jhanwar International (the
\nprincipal manufacturer) for processing fabrics. The appellant
\nreceived grey fabrics for processing, under challans issued by the
\nprincipal manufacturer and invoices issued by M\/s Muskan Prints who
\nhad sold the grey fabrics to the principal manufacturer and consigned
\nthe goods to the appellant. The appellant availed credit on duty paid
\ninputs used for the manufacture of processed fabrics. After
\nmanufacturing the fabrics, the appellant sent the goods back to the
\nprincipal manufacturer and debited the amount of Central Excise duty
\napplicable on the processed fabrics.\n<\/p>\n
3.\tOn
\nscrutiny of E.R.1., for the month of June,2003, it was noticed that
\nthe CENVAT credit  availed by the appellant-assessee was on the basis
\nof invoices which were found to be fake and fictitious. Accordingly,
\nShow Cause Notice came to be issued against the appellant. The
\nAdjudicating Authority vide order dated 14.07.2004 held that the
\nappellant had not cared to verify the existence of the vendor M\/s.
\nMuskan Prints and had therefore, not taken proper precautions to
\nascertain as to whether the supplier of  the materials has paid duty
\nof the materials, as required under Rule 7(2) of the CENVAT Credit
\nRules 2002 (the Rules). He, accordingly, held that the charges
\nlevelled against the appellant were proved and that the appellant was
\nliable to pay duty under section 11A(2) of the Central Excise Act,
\n1944 (the Act) as well as interest and penalty.\n<\/p>\n
4.\tThe
\nappellant carried the matter  in Appeal before the Commissioner
\n(Appeals), Central Excise and Customs, Surat-1, who vide order dated
\n16.05.2005 confirmed the amount of duty but reduced the penalty to
\nRs.1,00,000\/- under section  11AC of the Act read with Rule 13 of the
\nRules. The appellant carried the matter in further Appeal before the
\nCustoms, Excise  & Service Tax Appellate Tribunal  (the
\nTribunal). The Tribunal vide the impugned order dated  08.11.2006
\nconfirmed the amount of duty and set aside the  penalty. The
\nappellant thereafter moved an application for rectifying the
\naforesaid order passed by the Tribunal, which came to be rejected by
\nthe impugned order dated 25.05.2007.\n<\/p>\n
5.\tMr.\n<\/p>\n
Hardik Modh, learned Counsel for the appellant has drawn the
\nattention of the Court  to the provisions of  sub-rule (2) of Rule 7
\nof the  Rules to submit that under the said Rule the manufacturer  or
\nproducer taking CENVAT credit on inputs or capital goods is required
\nto take all reasonable steps  to ensure that the inputs or the
\ncapital goods  in respect of which  he has taken the CENVAT credit
\nare goods on which  the appropriate duty of excise as indicated in
\nthe documents  accompanying the goods, has been paid. Referring to
\nthe Explanation  to the said sub-rule, it is submitted that the
\nappellant has taken reasonable steps to satisfy itself about the
\nidentity of the supplier as envisaged under the said rule. It was
\npointed out that the appellant had procured stock declaration filed
\nby M\/s. Muskan Prints stating that  as on 31.03.2003 the goods were
\navailable  at the factory of Muskan Prints. As per the declaration,
\nM\/s. Muskan Prints was entitled to avail  the deemed credit  on the
\nbasis of  declaration of stock. The appellant had also obtained an
\nundertaking of the principal manufacturer for payment of CENVAT
\ncredit in case of any dispute in future. It was accordingly submitted
\nthat in the circumstances the provisions of sub-rule  (2) of Rule 7
\nhad been substantially complied with, hence the appellant ought not
\nto have been held liable for payment of duty and interest.\n<\/p>\n
6.
\nThe only issue involved is as to whether the appellant who has taken
\nCENVAT credit on the inputs has taken reasonable steps to ensure that
\nthe inputs in respect of which CENVAT credit has been taken, are
\ngoods on which the appropriate duty of excise as indicated in the
\ndocuments accompanying the goods has been paid as envisaged under
\nsub-rule (2) of Rule 7 of the Rules.\n<\/p>\n
7.
\nThe Tribunal in its impugned order dated 01.12.2006  has recorded the
\nfollowing finding :\n<\/p>\n
?S6. It is not in dispute
\nthat the credit has been taken on the basis of invoices issued by one
\nM\/s. Muskan Prints of Surat. M\/s. Muskan Prints did not exist in the
\naddress given by them. There is a clear evidence of fraud on the part
\nof M\/s. Muskan Prints. Any fraud vitiates the transaction. The
\ndocument cannot be held to be valid for the purpose of taking credit.
\nThe appellant is the manufacturer; the duty liability and obligation
\nto follow the  Central Excise law and procedure  is on them. They are
\nthe party who has taken the credit. It is seen that  there is a clear
\nunderstanding between  the appellant  as a manufacturer and
\nM\/s.Jhanwar International, the merchant manufacturer as to who shall
\nbear the burden in case the credit became ineligible. Did the
\nappellant and the merchant manufacturer had premonition or knowledge
\nabout the non-existence of M\/s. Muskan  Prints?  Surprisingly, a copy
\nof the stock declaration  said to have been filed  by M\/s. Muskan
\nPrints was produced by  the appellant. As a manufacturer who has
\ntaken the credit  he is required to  know the supplier  of raw
\nmaterials  and not merely their  merchant manufacturer. It is like a
\nbuyer of stolen goods  cannot claim ownership  of the goods  even if
\nhe has  purchased  without knowledge. If he has purchased  the stolen
\ngoods  with the knowledge that  they are stolen,  then he is liable ,
\n in addition,  to penal action.  Anyway, the appellant, in this case,
\n has taken an undertaking  from the merchant manufacturer to
\ncompensate him , in the event of credit  being found not eligible.
\nWhether this was done out of  abundant precaution or out of
\nknowledge  is not clear. In this regard benefit of doubt  naturally
\ngoes  to the appellant  manufacturer.??\n<\/p>\n
\tThe
\nTribunal found that the invoices raised by M\/s. Muskan Prints are not
\nvalid for the purpose of taking credit by the appellant and
\naccordingly, held that the appellant was liable to pay duty and
\ninterest, but set aside the penalty.\n<\/p>\n
8.
\nIn its impugned order made in the rectification application, the
\nTribunal has reproduced the aforesaid findings and thereafter
\nobserved as follows:\n<\/p>\n
?SThere are two major issues
\ndiscussed in the above paragraph. One relates to eligibility of
\nCenvat credit on the basis of document vitiated by a fraud. The
\nsecond issue relates to penal action on the appellant manufacturer.
\nOn the first issue, it has been held that the credit was not
\navailable. As regards the second issue, though the conduct of the
\nappellant manufacturer was found to be suspicious but still the
\nbenefit of doubt was given holding that the appellant did not have
\nknowledge or intention in wrongly availing the Cenvat credit. In the
\nlight of the overall evidence and taking the entire facts and
\ncircumstances of the case, it has been categorically held that the
\ninvoices raised by M\/s Muskan Prints based on which the appellant
\nmanufacturer had taken credit is not valid for the purpose of taking
\ncredit by the appellant. It was also directed that the appellant was
\nrequired to pay duty and interest as demanded by the original
\nauthority and confirmed by the appellate authority. Granting benefit
\nof doubt the appellant might not be in collusion with the
\nnon-existing Muskan Prints, the penalty was totally set aside. I do
\nnot find any mistake apparent on the record of the case. Further the
\norder passed by the Tribunal was an appealable order. In the light of
\nthe above, I do not find any merits in the application  for
\nrectification of mistake. The application is rejected.??\n<\/p>\n
9.
\nSub-rule (2) of rule 7 of the Rules provides that the manufacturer or
\nproducer taking CENVAT credit on inputs or capital goods shall take
\nall reasonable steps to ensure that the inputs or capital goods in
\nrespect of which he has taken the CENVAT credit are goods on which
\nthe appropriate duty of excise as indicated in the documents
\naccompanying the goods, has been paid.\n<\/p>\n
10.
\nAs to what are reasonable steps has been provided under the
\nExplanation thereto, which reads as under:\n<\/p>\n
Explanation. – The
\nmanufacturer or producer  taking CENVAT credit on inputs  or capital
\ngoods  received by him shall be deemed  to have taken reasonable
\nsteps if he satisfies  himself about the identity and address of the
\nmanufacturer or supplier, as the case may be, issuing the documents
\nspecified in rule 7 evidencing the payment of excise duty or the
\nadditional duty of customs,  as the case may be, either –\n<\/p>\n
(a)\tfrom his personal
\nknowledge; or<\/p>\n
(b)\ton the strength of a
\ncertificate  given by a person  with whose handwriting or signature
\nhe is familiar; or<\/p>\n
(c) on the strength of a
\ncertificate issued to the manufacturer or the supplier, as the case
\nmay be,  by the Superintendent of Central Excise within whose
\njurisdiction  such manufacturer has his factory  or the supplier has
\nhis place of business,<\/p>\n
and where the identity and
\naddress of the manufacturer  or the supplier is satisfied  on the
\nstrength of a  certificate, the manufacturer or producer taking
\nCENVAT credit shall retain such certificate for production before the
\nCentral Excise  Officer on demand.??\n<\/p>\n
11.
\nThus, ?Sreasonable steps?? as envisaged under the aforesaid
\nprovision are that the manufacturer or producer taking CENVAT credit
\non the inputs or capital goods received by him should satisfy himself
\nabout the identity and address of the manufacturer or supplier, as
\nthe case may be, who has issued the documents specified in rule 7,
\neither from his personal knowledge; or on the strength of a
\ncertificate given by a person with whose handwriting or signature he
\nis familiar; or on the strength of a certificate issued to the
\nmanufacturer or supplier, by the Superintendent of Central Excise
\nwithin whose jurisdiction such manufacturer has his factory or the
\nsupplier has his place of business. According to the appellant the
\nsteps taken by it are to the effect that the appellant has procured a
\ndeclaration filed by M\/s Muskan Prints stating that at the relevant
\ntime the goods were available at their factory and that Muskan Prints
\nwas entitled to avail the deemed credit on the basis of declaration
\nof stock. The appellant also obtained an undertaking from the
\nprincipal manufacturer for payment of CENVAT credit in case of any
\ndispute in future.\n<\/p>\n
12.
\nExamining the steps taken by the appellant in the light of the
\naforesaid statutory provisions, it is apparent that the steps taken
\nby the appellant do not fall within any of the three categories
\nenumerated under the Explanation to rule 7(2) of the Rules, viz. the
\nappellant undoubtedly has not satisfied itself about the identity and
\naddress of the supplier either from its personal knowledge, or on the
\nstrength of a certificate given by a person whose handwriting or
\nsignature it is familiar with, or on the strength of the certificate
\nissued to the supplier by the Superintendent of Central Excise as
\nenvisaged under the said provision. It is, therefore, not possible to
\nstate that the appellant has fulfilled the requirements of sub-rule
\n(2) of Rule 7 of the Rules.\n<\/p>\n
13.
\nIn the aforesaid set of facts and circumstances, it cannot be said
\nthat there is any infirmity in the impugned orders of the Tribunal so
\nas to give rise to any question of law, as proposed or otherwise,
\nmuch less any substantial question of law. The appeal is,
\naccordingly, dismissed.\n<\/p>\n
\t\t\t\tSd\/-\t\t\t\tSd\/-\n \n\n      \n          (D.A.\nMehta, J)   (H.N. Devani, J.)\n \n\n \n\n\n \n\n \n\n\n \n\nM.M.BHATT\n\n    \n\n \n\t   \n      \n      \n\t    \n\t\t   \u00a0\u00a0\u00a0\n\t   \n      \n\t  \t    \n\t\t   Top\n\t   \n      \n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Sheela vs Unknown on 23 July, 2008 Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print TAXAP\/197\/2008 10\/ 12 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 197 of 2008 ========================================================= SHEELA DYEING & PRINTING MILLSP. LTD. – Appellant(s) Versus THE COMMISSIONER OF CENTRAL EXCISE & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-128028","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSheela vs Unknown on 23 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sheela-vs-unknown-on-23-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sheela vs Unknown on 23 July, 2008 - 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