Essel Propack Ltd. Versus Commissioner of GST & CX, Thane Rural
Central Excise
2018 (10) TMI 81 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 27-9-2018
E/85319/2018 – A/87452/2018
Central Excise
Dr. Suvendu Kumar Pati, Member (Judicial)
For the Appellant : Shri Prasad Paranjape, Advocate
For the Respondent : Shri D.S. Chavan, Supdt. (AR)
ORDER
The dispute relating to availment of cenvat credit of service tax paid on five items by the appellant manufacturing company has given rise to this appeal after denial of cenvat credit to the tune of Rs. 15,03,613/- was adjudicated by way of order-in-original allowing a major portion and disallowing Rs. 4,61,048/- that was again challenged and resulted in confirmation of duty demand of Rs. 4,29,853/- against inadmissible credit, interest and penalty of equivalent amount invoking extended period.
2. Factual backdrop of the case, as revealed from the appeal memo and the submissions of the ld. Counsel for the appellant is
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envat credit for the entire amount of Rs. 31,195/- availed against gardening services and confirmed the duty demand etc. in respect of rest of services.
3. During the course of hearing of appeal, ld. Counsel for the appellant submitted a compilation of case laws in respect of each cenvat credit availed by them and sample invoice copies concerning shifting of machinery from their Washind factory to Goa to justify the labour charge incurred by them along with copies of purchase order marked as exhibit A-1 to A-3 annexed to the appeal memo concerning services availed from M/s. Voltas Material Handling Pvt. Ltd., M/s. Lanes Mechatronics and Vodafone. He argued that in view of decision reported in 2013 (30) STR 3 (Guj.), 2016 (45) STR 383 (Tri-Mumbai), 2016 (44) STR 654 (Tri-Chan.), AC fitted in guesthouse and shop floor required periodic maintenance and such services availed by maintenance of AC are admissible credits. He further submitted that in view of decision reported in 2017 (3) GST
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tion, the ld. AR contended that such irregularity was sought to be purposefully remediated in raising ISD challan after the irregularity was pointed by the department. Raising strong objection to the contention of the appellant in respect of copies of two bills and concerning labour charges of shifting of machine, which should not have been produced before the appellate Tribunal and admitted as evidence without an express permission as contemplated under Rule 23 of the CESTAT Procedure, he pointed out that fraud had been practised in converting a transportation bill to labour charge bill. Pointing out the insertion of the words “labour charges” made in the bill subsequent to its preparation, the ld. AR submitted that those copies should be disbelieved since not considered to have been raised against labour charges. Moreover, he reiterated the Commissioner (Appeals)'s observation that outward transportation mentioned in the definition of input service was in respect of final product and
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nd signature can be done by a court but even such requirement would not arise in the instant case since to a man of ordinary prudence, two different handwriting are visible in those two bills and it appears that labour charges have been purposefully inserted in the bills to cover the services availed under the Cenvat Credit Rules. Likewise, Exhibit A series did not reveal that those purchase orders were actually handed over to the vendors since in its right side margin, an endorsement is available that the same is a test print not (meant) for vendor. Appellant has produced those only to indicate that vendors were requested to shift the consignment to the factory address at Washind and not to its Head office but going by the conduct of the appellant the same cannot be taken as an affirmation of appellant's contention. On the other hand, it should be considered as misstatement or fraud being practiced by the appellant, since it is not a copy of the original purchase order and manufacture
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tion to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” (highlighted to emphasis)
9. In Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550 it was held by the Hon'ble Supreme Court as follows:-
“since fraud affects the solemnity irregularity and orderly base of the proceedings of the Court and also amounts to the abuse of the process of court, the courts have been held to have an inherent power to set aside an order obtained by fraud practice upon that court. Similarly where the court is misled by the party or the court itself counts the mistake which prejudice the party the court has inherent power to recall its order.”
10. Though the above pronouncements were held in respect of civil disputes, it has a bearing on the case in hand for the reason that documentary evidence produced before the Court have no connection on the actual transactions made by the appella
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