Commr. of C. Ex., Ahmedabad-II vs Transformers and Rectifiers (India) Ltd.

Bhaskar Bhattacharya, ACJ.

Tax Appeal No. 1332 of 2011 is at the instance of the revenue in a proceeding u/s 35(G) of the Central Excise Act, 1944 ("the Act") and is directed against an order dated March 17, 2011 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad ["the Tribunal"] in Appeal No. E/1137/2009, thereby allowing the appeal preferred by the assessee after setting the order of the Commissioner (Appeals). Being dissatisfied, the revenue has come up with the present Appeal.

It appears that in a proceeding arising out of Section 11 of the Act, the adjudicating authority demanded central excise duty of Rs. 58,24,986/- equal to Cenvat credit allegedly wrongly availed and utilized by the assessee, with interest as applicable and also imposed penalty equal to the above amount u/s 11AC of the Act.

The assessee preferred an appeal before the appellate authority which was dismissed.

In further appeal before the Tribunal, the Tribunal, on consideration of the materials on record found that credit had been availed on the basis of invoices issued by the 1st and 2nd stage dealers and not on the basis of commercial invoices issued by M/s. Darmin Steel Suppliers under whose delivery challan and commercial invoices, the payments were made. The Tribunal found that Circular No. 218/52/96 -CX, dated June 4, 1996, issued by the Board covered the situation like the present one. The Tribunal further found that even though the Rules had undergone modifications, the principles underlying availment of Cenvat credit remained the same. The Tribunal also found that there was no dispute that the appellant before it did purchase the goods and there was absolutely no evidence to show that even one transaction out of several was not genuine and the goods had not been received but only the bills had been raised.

In such circumstances, as there was no evidence to show that the inputs had not been received and in all the cases, invoices issued by the first and second dealers had shown the name of the appellant before the Tribunal as consignee and credit had been taken on that basis, the Tribunal set aside the order of the appellate authority.

The aforesaid findings being based on the appreciation of admitted fact, we find that no substantial question of law is involved justifying interference with the findings recorded by the Tribunal. We, thus summarily dismiss this Appeal. In respect of the Tax Appeal No. 1358 of 2011, the facts being the same, we dismiss the said Appeal also on the selfsame ground.