Incorporated Daub Verhoeven Ltd. vs Union of India

The Court: By challenging the order dated 28th January, 2014 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) disposing of an application seeking waiver of pre-deposit condition, the present writ petition is filed before this Court. The learned Advocate for the writ petitioners is very much vocal in contending that his clients have paid the excess amount than the demand made in the show cause notice and, therefore, there is no justification on the part of the Tribunal to direct the petitioners to deposit 25% of the demand and 10% of the personal penalty. The attention of the Court is drawn to the show cause notice, dated 26th November, 2009 wherein the authority recorded the payment of an amount for a period which is covered under the proceeding initiated against the petitioners. The Department says that there was an illegal and wrongful availment of the Cenvat credit as the petitioners could not undertake any manufacturing process and, therefore, exposed himself liable to be punished under the Central Excise Act and the Rules framed thereunder.

In a preliminary inquiry, the persons disclosed by the petitioners to have done the job work as well as transported the finished goods, were examined and their statements were corrected. According to the petitioners the majority of those persons have corroborated the statement made by the petitioners except one or two who denied to have undertaken the job work or transported the finished goods of the petitioners.

It is vehemently submitted that the person who made a statement having an adverse impact on the stand of the petitioners should have been exposed to the cross-examination by the petitioners and having not permitted to do so, those statements cannot operate against the petitioners. It is further stated that excise duty on the finished goods have been paid by the petitioners and, therefore, there is a revenue neutral and the authorities have wrongly initiated a proceeding against the petitioners.

According to Mr. Saraf, learned Advocate appearing for the respondents, the core issue is not the one which is tried to be portrayed before this Court. The authorities have found that the petitioners have not undertaken any manufacturing activities and, therefore, are not entitled to avail the Cenvat credit. Since the petitioners have wrongfully and illegally avail the same Cenvat credit, the proceedings have been initiated against him and the fact finding authorities have held against the petitioners.

This Court also concur with the submission of Mr. Saraf. The proceeding was initiated on an allegation that the petitioners have not done any manufacturing activities and there was a wrongful availment of the Cenvat credit. It does not admit any debate that the Cenvat credit is as good as cash provided the same is availed in the manner permissible under the relevant rules and the statute. It is no doubt true that the statement of the persons made before the authority if adversely affect the interest of the assessee, the authority must provide an opportunity to the assessee to cross-examine the same witness. This plea appeared to have been taken by the petitioners before the original authority as well as appellate authority. The said authorities did not find any substance therein. However, the matter is at large before the Tribunal where the Tribunal shall consider all the factual aspects at the time of deciding the appeal finally. Whether the writ petitioners have undertaken the manufacturing process or not is essentially a question of fact which is to be decided by a fact finding authority unless such findings are based on no-material or the material piece of evidence have not been considered by the fact finding authority. The Tribunal found that the petitioners have been able to make out an arguable case and have granted waiver to the extent of 75% so far as it relates to the demand and 90% of the penalty imposed on the director of the company and a total waiver of the statutory penalty.

Such discretion cannot be said to be perverse and so unreasonable that it cannot be allowed to stand for a moment. The writ Court should be slow and circumspect in interfering with the discretionary order passed by the authority unless such discretion appears to be rational, unreasonable and shockingly to the judicial conscience. With these observations the writ petition is disposed of. There will be no order as to costs.