{"id":34620,"date":"2002-03-20T00:00:00","date_gmt":"2002-03-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/auto-general-industries-vs-northern-bench-customs-excise-on-20-march-2002"},"modified":"2015-05-15T10:36:40","modified_gmt":"2015-05-15T05:06:40","slug":"auto-general-industries-vs-northern-bench-customs-excise-on-20-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/auto-general-industries-vs-northern-bench-customs-excise-on-20-march-2002","title":{"rendered":"Auto & General Industries vs Northern Bench, Customs Excise & … on 20 March, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Auto & General Industries vs Northern Bench, Customs Excise & … on 20 March, 2002<\/div>\n
Equivalent citations: 2002 VIIIAD Delhi 106, 2002 (62) DRJ 427, 2002 (82) ECC 27, 2002 (143) ELT 487 Del<\/div>\n
Author: D Bhandari<\/div>\n
Bench: D Bhandari, V Sen<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Dalveer Bhandari, J.  <\/p>\n
1. This is an application under Section 35(G)(3) of
\nCentral Excise & Salt Act, 1944 before this Court against
\nReference Order No. R\/34\/99-NB(DB) dated 27.10.1999
\nbearing File No. E\\2350\/93-NB(DB) passed by the
\nCustoms, Excise & Gold (Control) Appellate Tribunal.\n<\/p>\n
 2. The Tribunal incorporated the following
\nquestions of law arising out of the Final Order No.
\nA\/947\/97-NB dated 5.9.1997:\n<\/p>\n
 “Where the statement of the representatives
\nof M\/s. Baldev Metal Pvt. Ltd., M\/s Bharat
\nAlloy Cast. Co., M\/s. Metal Cast, M\/s.
\nSimplex Traders remain uncorroborated by any
\nmaterial evidence on record, whether it is
\ncorrect to hold that aluminium ingots and
\nzinc alloy ingots supplied by these
\nsuppliers on the strength of their invoices,
\nare non-duty paid or having been cleared at
\nNil rate of duty and thereby disallowing the
\nMODVAT credit on deemed credit basis to the
\nappellants in terms of Government order
\nF.No. 342\/1\/88-TRU dated 1.6.89 and F.No.
\n342\/1\/88 dated 12.7.90.\n<\/p>\n
 2. Where there exists no evidence with
\nregard to the above named three suppliers
\nhaving been engaged in the manufacturing
\nactivities towards aluminium ingot and zinc
\nalloy ingots and the same also not been
\nverified by the Deptt. during the course of
\ninvestigation, as confirmed by the officers
\nduring the cross-examination, is still
\ncorrect to hold that the supplies effected
\nto appellants by these suppliers were from
\ntheir manufacturing activities.\n<\/p>\n
 3. Before denying the MODVAT credit on the
\ninvoices issued by the above named
\nsuppliers, whether the Deptt. has
\ndischarged the burden of establishing with
\nan acceptable legal evidence that such
\nsuppliers are the manufacturer of aluminium
\ningots and zinc alloy ingots and zinc alloy
\ningots and further the goods supplied to the
\nappellants were infact from such alleged
\nmanufacturing activity.\n<\/p>\n
 4. Where the Supdt. of Central Excise,
\nPreventive and the enquiry officer of
\npreventive, connected with case have deposed
\nduring Cross-examination of having not
\nconducted any enquiries with regard to the
\nproduction capacity, power\/electricity
\nconsumed, books of account, verification,
\nnumber of workers if any employed by such
\nsuppliers, should it not be held that there
\nis absolutely no evidence on record which
\ncould establish such suppliers to be the
\nmanufacturer of the goods supplied to the
\nappellants.\n<\/p>\n
 5. To a case where it does not stand
\nestablished about the goods supplied to be
\nnon-duty, should be Hon’ble Tribunal
\nhave not extended the benefit of deemed
\ncredit and thereby quashing the order of the
\nCommissioner, Delhi for denial of MODVAT
\ncredit and for imposition of penalty.\n<\/p>\n
 6. Where the invoices supplied by the
\nsuppliers have been filed along with regular
\nmonthly RT-12 returns and on the basis of
\nwhich deemed MODVAT credit availed and such
\nreturns being assessed by the Range
\nSuperintendent under Rule 173-1 should it
\nnot have been held that the appellants could
\nnot be charged with mis-declaration and
\nsuppression and the extended period of five
\nyears could not be invoked in the present
\ncase.\n<\/p>\n
7. Where the statement of Shri S.S.\n<\/p>\n
Aggarwal, partner of the firm confirms that
\nhe had no knowledge about the goods being
\nexempted and where the evidence on record
\nalso does not suggest any such knowledge on
\nthe part of the appellants or Shri
\nS.S. Aggarwal or any other partner and where
\nthe monthly RT-12 returns filed or also
\nassessed under Rule 173-1, and where the
\ninvestigating officer did not verify from
\nSupdt. Range concerned with the assessment
\nof RT-12 returns about his knowledge, should
\nthis Hon’ble Tribunal have not followed the
\nratio of the decision even of the Apex Court
\npassed in the case of Collector of Central
\nExcise v. Vikash Gases Ltd., 1997 (95)
\nE.L.T. 457 (S.C.) and ratio in the case of
\nRainbow Industries Pvt. Ltd. v.\n<\/p>\n
Collector of Central Excise –  wherein it has been held
\nthat extended period of five years cannot be
\ninvoked where the classification\/price
\nlist\/assessments have been approved\/assessed
\nby the Deptt.”\n<\/p>\n
 3. The Tribunal after hearing the learned counsel
\nfor the parties and examining the evidence on record
\ncame to the categoric finding that the petitioner
\ncompany is not entitled to the benefit of deemed credit
\n(Modvat credit) on the inputs which are clearly
\nrecognisable as non-duty paid. The Tribunal further
\nmentioned that no substantial question of law arose in
\nthe reference and according to the opinion of the
\nTribunal, no reference is warranted in the instant case.\n<\/p>\n
 3. The petitioner company aggrieved by the said
\norder has approached this Court. It may be pertinent to
\nmention that during the pendency of this petition the
\npetitioner company filed an additional affidavit by
\nwhich the earlier questions of law have been discarded
\nand only one question of law was formulated. The same
\nreads as under:-\n<\/p>\n
  “Whether the extended period of limitation under
\nSection 11A(1) of the Central Excise Act, 1944 can
\nbe invoked where the invoices raised by the
\nsuppliers, on the basis of which the deemed
\ncredit was being availed by the Applicant, were
\nregularly being filed with the monthly RT-12
\nReturns which were duly assessed by the Range
\nSuperintendent under Rule 173-I of the Central
\nExcise Rules, 1944.”\n<\/p>\n
 4. The basic facts which are necessary to dispose
\nof the Reference are recapitulated as under:-\n<\/p>\n
 5. On 4.1.1992 the Central Excise Staff, New Delhi
\npaid a surprise visit to the factory premises of the
\npetitioner company. During the course of scrutiny of
\nrecords they discovered that the petitioner company is
\ntaking benefit of Modvat credit on aluminium alloy and
\nzinc alloy ingots on the basis of invoices. Some of the
\ninvoices showed that the suppliers were not traders but
\nmanufacturers of the goods supplied by them on which
\ndeemed credit was taken.\n<\/p>\n
 7. The partner of the petitioner company,
\nS.S. Aggarwal, in his statement dated 4.1.1992 recorded
\nunder Section 14 of the Central Excise & Salt Act, 1944
\nexplained the procedure and also stated that M\/s Simplex
\nTraders, 11-A, G.T.K. Road and M\/s Bharat Alloys and
\nCastings, Gali No. 9, Samaypur, Delhi-42 were the
\nmanufacturers of aluminium alloy\/zinc alloys purchased
\nby them.\n<\/p>\n
 8. The Collector, Central Excise, in his order
\nmentioned that the inputs purchased by the party from
\nM\/s Bharat Alloys & Castings, Metal Cast, Simplex
\nTraders & Baldev Metals (P) Ltd., were clearly
\nrecognisable as non-duty paid and exempt from duty in as
\nmuch as that M\/s Bharat Alloys & Castings, M\/s Simplex
\nTraders, M\/s Metal Cast were neither licensee under
\nCentral Excise as they have been availing exemption
\nunder Notification No. 188\/88-CE dt. 13.5.1988 for
\nmanufacturing aluminium alloy\/ingots\/zinc alloys ingots
\nnor any duty was paid by them and further the goods
\npurchased from M\/s Baldev Metal were also non-duty paid
\nand clearly recognisable as much, because they have been
\nreceiving exemption certificate with each challan and it
\nwas for the party to ensure that the inputs on which
\nthey were availing deemed Modvat were not recognisable
\nas non-duty paid. It is clearly written on the invoices
\nof M\/s Bharat Alloys and Castings, Metal Cast and M\/s
\nSimplex Traders that they are manufacturer of the goods.
\nObviously the party was required to obtain gate pass
\nwhen the goods are purchased from a factory and
\nnon-receipt\/procurement of the gate pass shows that the
\ngoods were non-duty paid and the deemed Modvat was not
\nadmissible. Similarly, the case of supplies by M\/s
\nBaldev Metals, the goods were clearly recognisable as
\nnon-duty paid.\n<\/p>\n
 9. The learned Collector, Central Excise, mentioned
\nthat it appeared that the petitioner company has availed
\ninadmissible deemed Modvat credit during the period
\n6.5.1989 to 30.9.1991 and for the period 30.10.1991 to
\n24.1.1992. Learned Collector further mentioned in his
\norder that to avail the Modvat credit the input had to
\nbe duty paid. It is further mentioned that the Modvat
\ncredit was admissible only in respect of duty paid
\naluminium\/zinc alloys ingots and not on ingots which have
\nenjoyed the exemption. It is also mentioned in the
\norder that there was no doubt that deemed Modvat credit
\nwas permitted to be availed on the specified goods but
\nit could be availed only if the goods are clearly
\nrecognisable as duty paid. When both the type of inputs
\nthat is duty paid and non-duty paid were available, to
\navail of the Modvat credit the party was required to
\nprocure only duty paid inputs. In the order it is also
\nmentioned that the petitioner company purchased the
\ninputs from there manufacturers mentioned above from the
\nmarket on which no duty was paid and hence deemed Modvat
\ncredit was not admissible to them. It is also mentioned
\nthat the petitioner company suppressed the material
\nfacts from the department by misleading it as much as
\nthe declaration filed under Rule 57(G) is with intent to
\navail Modvat on duty paid goods which was, therefore,
\nacknowledged but in fact they purchased exempted
\naluminium alloys\/zinc alloys ingots and willfully availed
\ninadmissible Modvat credit thereon. So under Ruled
\n57(I) of the Rules read with Section 11A of the Act,
\nextended period of 5 years was liable to be invoked for
\nrecovery of inadmissible Modvat credit availed by  the
\nparty.\n<\/p>\n
 10. The relevant portion of Section 11A of the
\nCentral Excise & Salt Act, 1944 reads as under:-\n<\/p>\n
 “Section 11A. Recovery of duties not levied or
\nnot paid or short-levied or short-paid or
\nerroneously refunded.\n<\/p>\n
 (1) When any duty of excise has not been levied
\nor paid or has been short-levied or short-paid or
\nerroneously refunded, a Central Excise Officer
\nmay, within one year from the relevant date,
\nserve notice on the person chargeable with the
\nduty which has not been levied or paid or which
\nhas been short-levied or short-paid or to whom
\nthe refund has erroneously been made, requiring
\nhim to show cause why he should not pay the
\namount specified in the notice;\n<\/p>\n
 PROVIDED that where any duty of excise has not
\nbeen levied or paid or has been short-levied or
\nshort-paid or erroneously refunded by reason of
\nfraud, collusion or any willful mis-statement or
\nsuppression of facts, or contravention of any of
\nthe provisions of this Act or of the rules made
\nthere under with intent to evade payment of duty,
\nby such person or his agent, the provisions of
\nthis sub-section shall have effect;\n<\/p>\n
 PROVIDED FURTHER where the amount of duty which
\nhas not been levied or paid or has been
\nshort-levied or short-paid or erroneously
\nrefunded is one crore of rupees or less a notice
\nunder this sub-section shall be served by the
\nCommissioner of Central Excise or with his prior
\napproval by any officer subordinate to him;\n<\/p>\n
 PROVIDED ALSO that where the amount of duty has
\nnot been levied or paid or has been short-levied
\nor short-paid or erroneously refunded is more
\nthan one crore rupees, no notice under this
\nsub-section shall be served without the prior
\napproval of the Chief Commissioner of Central
\nExcise;”\n<\/p>\n
 11. The petitioner company incorporated in the
\npetition that the Tribunal has erred in not referring
\nthe questions of law which arose in the reference.\n<\/p>\n
 12. It is also incorporated in the petition that
\nbefore denying Modvat credit on invoices issued by the
\nabove mentioned suppliers whether the department has
\ndischarged the burden of establishing with an acceptable
\nlegal evidence that such suppliers are the manufacturer
\nof aluminium and zinc alloy ingots and further the goods
\nsupplied to the petitioner company were in fact from
\nsuch alleged manufacturing activity. It is also
\nincorporated in the petition that the petitioner company
\nhas been regularly filing RT-12 Returns on the basis of
\nwhich deemed Modvat credit was availed and such returns
\nbeing assessed by the Range Superintendent under Rule
\n173-1. So the petitioner company cannot be charged with
\nmisdeclaration and suppression and the extended period
\nof five years could not be invoked in the present case.\n<\/p>\n
 13. We have heard learned counsel for the parties at
\nlength. The petitioner company availed of Modvat credit
\non the goods supplied belonging to the category of
\nexempted goods, or in other words, where no duty was
\npaid. Obviously, the petitioner company could not avail
\nthe Modvat credit on such goods. No fault can be found
\nin the respondents’ invoking Section 11A of the Act in
\nthe facts and circumstances of this case because the
\npetitioner company suppressed the material facts from
\nthe department by misleading it inasmuch as the
\ndeclaration filed under Rule 57-g is with an intent to
\navail Modvat credit on goods on which no duty was paid.\n<\/p>\n
 14. The petitioner company was not entitled to the
\nbenefit of Modvat credit which it has availed. In our
\nconsidered opinion, no interference is called for. The
\nreference is accordingly disposed of.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Auto & General Industries vs Northern Bench, Customs Excise & … on 20 March, 2002 Equivalent citations: 2002 VIIIAD Delhi 106, 2002 (62) DRJ 427, 2002 (82) ECC 27, 2002 (143) ELT 487 Del Author: D Bhandari Bench: D Bhandari, V Sen JUDGMENT Dalveer Bhandari, J. 1. This is an application under […]<\/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":[14,8],"tags":[],"class_list":["post-34620","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAuto & General Industries vs Northern Bench, Customs Excise & ... on 20 March, 2002 - 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\/auto-general-industries-vs-northern-bench-customs-excise-on-20-march-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Auto & General Industries vs Northern Bench, Customs Excise & ... on 20 March, 2002 - 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