Whether mere reliance on statement is valid to impose penalty without proper investigation?

PJ/CASE LAW/2015-16/2561

Case:- COMMISSIONER OF C. EX., LUDHIANA VERSUS TALSON MILLS STORE

Citation:-2015(315) E.L.T. 415 (P & H)

Brief Facts:-The Commissioner of Central Excise, Ludhiana, is before High Court, challenging the correctness of order dated 17-7-2012 (Annexure A-4), passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, Principal Bench, accepting an appeal filed by the respondent thereby setting aside penalty.

Counsel for the revenue submits that as the respondent was implicated by one Shri Sachin Aggarvanshi, who admitted that he had not received any goods but only supplied invoices to dealers including the respondent, the statement made by Shri Sachin Aggarvanshi is sufficient to implicate the respondent, thereby obviating any further enquiry. It is further submitted that as the Tribunal is not justified in reversing findings of fact recorded by the Assessing Officer and the Appellate Authority, the following substantial question of law arises for consideration : -
“Whether the Tribunal is justified to reverse the findings of lower authorities regarding imposition of penalty on respondent(second-stage dealer) for passing Cenvat credit on the basis of invoices issued by first-stage dealer when the first stage dealer who supplied the goods to second-stage dealer himself admitted that he has done the paper transactions only.”

Respondent Contentions:-The respondent reiterated Tribunal’s order.

Reasoning of Judgment:- High Court have heard counsel for the appellant, perused the impugned order as well as the orders passed by the Assessing Officer and the Commissioner of Appeals and find no reason to hold that any question of law much less the question framed arises for adjudication. The learned Tribunal, has after appraisal of the entire record, rightly held that the absence of enquiry against the respondent or further verification of statement made by Shri Sachin Aggarvanshi, the respondent has been wrongly penalised. The Tribunal has also held that the revenue did not conduct any further enquiry from any transporter or actual manufacturer of goods to verify whether goods were not received by the respondent or that Shri Sachin Aggarvanshi’s statement applies to the respondent’s goods. This apart, the learned Tribunal has also held that the respondent was not associated with the enquiry conducted against Shri Sachin Aggarvanshi. A relevant extract from the order passed by the Tribunal, reads as follows : -

“The revenue has also not bothered to conduct further inquiries either from the appellant or from the transporters or the actual manufacturers of the goods or from the recipient of the goods. In the absence of any such investigation, reliance on the sole statement of Sh. Sachin Aggarvanshi which in any case does not apply to the goods dealt with by the present appellant, cannot be appreciated. I fail to understand as to why no statement of appellant was recorded or no inquiries were conducted by the actual manufacturer i.e., M/s. Patiala Strips (P) Ltd. Further no statement of representative of M/s. Ved Trading Company was recorded so as to arrive at the correct factual position. In the absence of any such inquiries and in view of the fact that statement of Sh. Sachin Aggarvanshi is not applicable. I find no reason to impose penalties upon the appellant. The same is accordingly, set aside and appeal allowed with consequential relief.”

The findings recorded by the Tribunal do not suffer from any error of fact, jurisdiction or of law that would invite interference. The revenue was required to hold an independent enquiry against the respondent and only, thereafter, could an order be passed imposing penalty. The fundamental errors pointed out by the Tribunal are sufficient to hold against the revenue.

In this view of the matter, we find no merit in the appeal and dismiss the same, in limine.

Decision:-Appeal dismissed.

Comment:-The essence of this case is that in the absence of inquiries conducted on the part of manufacturer, transporter etc., penalties cannot be imposed on second stage dealer on the allegation that credit has been passed on without delivery of goods. It was concluded that mere statement of First stage dealer admitting issuance of invoices without actual delivery of goods to the second stage dealer cannot be made the sole basis for imposing penalty on the second stage dealer without corroborating the said statement with cogent and appropriate evidences.

Prepared by: Hushen Ganodwala

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PJ/CASE LAW/2015-16/2561

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