Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2700

Denial of Cenvat credit on the basis of fake invoices.

Case:- NEELKANTH STEEL & AGRO INDUSTRIES VERSUS COMMR. OF C. EX., CHANDIGARH
 
Citation:-2015(317) E.L.T. 322(Tri. –Del.)
 
Issue:- Denial of Cenvat credit on the basis of fake invoices.
 
Brief facts:- The appellant are manufacturers of round and squares from MS ingots. They took CENVAT credit of Rs. 2,88,289/- during November 2005 on the basis of seven invoices regarding supply of steel  ingots issued by a registered dealer M/s. Sidh Balak Enterprises, Mandi Govindgarh. The invoices issued by M/s. Sidh Balak Enterprises show the manufacturer of the goods as M/s. JAS Casting Pvt. Ltd., Rajpura. The Department had earlier conducted investigation in respect of M/s. Sidh Balak Enterprises, Mandi Govindgarh, vis-à-vis their transaction with M/s. Jay Aay Alloys, Kala Amb and in course of investigation it had come out that the Proprietor of M/s. Sidh Balak Enterprises is one Shri Sachin, that he had obtained Central Excise registration as registered dealer in the name of two other firms also and that he had neither any office premises nor any godown premises, and that he had taken godown on rent sometime in May 2004 but had surrendered the same in July 2004 and as such during the period of dispute, he had neither any office nor any godown. Since the invoices issued by M/s. Sidh Balak Enterprises to the appellant showed the manufacturer of the goods as M/s. JAS Castings, Rajpura and there was substantial time gap between the date on which the goods were supplied by M/s. JAS Casting to M/s. Sidh Balak Enterprises and the date on which the invoice was issued by M/s. Sidh Balak Enterprises to the appellant and since M/s. Sidh Balak Enterprises had no godown premises, it appeared that the transaction of M/s. Sidh Balak Enterprises with M/s. JAS Casting and also the transaction between M/s. Sidh Balak Enterprises with and the appellant were bogus transactions and, as such, no goods had been supplied by M/s. Sidh Balak Enterprises to the Appellant under the seven invoices, in question, on the basis of which the Cenvat credit had been taken by the appellant company. Accordingly, on this basis, the Jurisdictional Assistant Commissioner vide order-in-original dated 30th April 2010 confirmed the Cenvat credit demand of the amount as mentioned above, alongwith interest and imposed penalty of equal amount on the appellant. On appeal being filed to Commissioner (Appeals), this order of the Assistant Commissioner was upheld vide order-in-appeal dated 12-10-2011 against which this appeal has been filed.
 
Appellant’s contention:-Ms. Sukriti Das, Advocate, the learned Counsel for the appellant, pleaded that the appellant had received MS Ingots, in question, under seven invoices from a registered dealer M/s. Sidh Balak Enterprises, Mandi Govindgarh who, in turn, had received the goods from M/s. JAS Casting Pvt. Ltd., Rajpura, that no inquiry has been conducted by the Department with M/s. Sidh Balak Enterprises, that the entire case of the Department is based on the investigation in respect of the transactions between M/s. Jay Aay Alloys Pvt. Ltd., Kala Amb and M/s. Sidh Balak Enterprises, that just because the transactions between M/s. Jay Aay Alloys & Kala Amb and M/s. Sidh Balak Enterprises, Mandi Gobindgarh were bogus transactions, it cannot be presumed that the transaction between JAS Casting Pvt. Ltd., Rajpura and M/s. Sidh Balak Enterprises were also Bogus transaction, that the goods supplied by M/s. Sidh Balak Enterprises to the appellant had been procured by them from M/s. JAS Casting Pvt. Ltd., that in absence of any evidence to the contrary, it cannot be presumed that M/s. JAS Casting Pvt. Ltd. had issued only bogus invoice without supply of any goods when there is no evidence in support of this allegation and that in view of this, the impugned order is not sustainable. Ms. Sukriti Das also cited the judgment of the Tribunal in the case of Talson Mill Store v. CCE, Ludhianareported in 2012 - TIOL - 1267 - CESTAT - DEL. wherein the Tribunal has held that when the Revenue has not conducted inquiry either from the assessee or from the transporter or the actual manufacturer of the goods or from the recipient of the goods, in absence of such investigation reliance, on the sole statement of one dealer, which in any case does not apply to the goods dealt with by the assessee, cannot be appreciated.
 
Respondent’s contention:-Shri R.K. Mishra, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that the Proprietor of the M/s. Sidh Balak Enterprises is Shri Sachin who in his statement has clearly admitted that he has obtained Central Excise registration as registered dealer in the name of several firms including M/s. Sidh Balak Enterprises, that he had rented godown sometime in May, 2004 but the same was surrendered in July, 2004 and as such, there was neither any office nor any godown at Mandi Govindgarh and he was operating through his mobile phone which he also kept changing frequently, that though no specific inquiry in respect of the transactions of M/s. Sidh Balak Enterprises with M/s. JAS Casting Pvt. Ltd., Rajpura has not been conducted, there is big gap between the time when M/s. JAS Castings issued invoices for ingots to M/s. Sidh Balak and the time when M/s. Sidh Balak issued invoices to the appellant and since M/s. Sidh Balak Enterprises had no godown during that period, it is unconceivable that the ingots supplied to the appellant company were purchased by M/s. Sidh Balak from M/s. JAS Casting Pvt. Ltd., that from the circumstances of the case, it is clear no goods have been supplied by M/s. Sidh Balak Enterprises to the appellant and as such only the invoices have been issued and that in view of this, there is no infirmity in the impugned order.
 
Reasoning of judgement:- The Cenvat credit, in question, has been taken by the appellant on the basis of seven invoices issued by M/s. Sidh Balak Enterprises, Mandi Gobindgarh to the appellant during November 2004 and December 2004. All these invoices mention, name of the manufacturer from whom the goods supplied to the appellant had been procured as “M/s. JAS Casting Pvt. Ltd.” and also details of the invoices issued by M/s. JAS Casting to M/s. Sidh Balak Enterprises. From the details of the invoices issued by M/s. JAS Casting, Rajpura to M/s. Sidh Balak Enterprises it is clear in each case there is big time gap of more than two weeks between the date which the invoices had been issued by M/s. JAS Casting to M/s. Sidh Balak Enterprises and the date on which the invoices had been issued by M/s. Sidh Balak to the appellant. When the appellant had no office or godown, it is difficult to believe as to how and where the goods had been stored. In view of this, the burden of proof that the goods had actually been received by the appellant company would shift to them. The appellant company in this regard has not produced any evidence. In view of this, they hold that the transactions of the appellant company with M/s. Sidh Balak Enterprises are bogus and as such no goods had been received by them and hence the Cenvat credit has been rightly denied. Therefore, in view of this, there is no infirmity in the impugned order. The appeal is dismissed.
 
 
Decision:- Appeal dismissed.
 
Comment:- The analogy of the case is that when the facts of the case indicate that fake cenvat credit has been passed on, the burden to prove that the credit was availed legitimately shifts on to the assessee. In this case, fake invoices were issued by dealer without supply of goods. Dealer was not having any office or godown for storing goods supplied to appellant and operating through mobile phone only. There was also big time gap of more than two weeks between date of issuance of invoices by manufacturer to dealer and invoices issued to appellant by dealer. Therefore, due to lack of evidence of genuineness of the transactions, they will be treated as bogus and credit will be deniable.
 
Prepared by:- Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com