2022 (3) TMI 1483 - CESTAT AHMEDABAD

Fraudulent availment of Cenvat credit - invoices issued by M/s Suraj Ltd without receipt of goods - case of revenue is also on the ground of transporters’ admission that the goods were not supplied to the appellant - Retraction of statements and print outs which was recovered from the computers of M/s Suraj Ltd - pre-ponderance of probability - allegation of suppression with the intention to avail undue credit or not - extended period of limitation - HELD THAT:- The goods received from M/s Suraj Ltd. properly recorded in the books and accounts of the Appellant. Further the Director of Suraj Ltd. during the cross-examination admitted the supply of goods to the Appellant - it is established that the appellant have received the inputs from M/s Suraj Ltd. in their factory.

The appellant have recorded the receipt of the goods in their cenvat account i.e. RG-23A-Pt. I and Pt. II and the said disputed inputs used in the manufacture of dutiable goods. The purchase of the goods under the invoices in question were accounted for in in books of account. The payment against the said invoices were made through cheques. The Revenue could not bring any evidence that the goods covered under the invoices were diverted to any other place. It is also not the case of the department that the appellant have procured some unaccounted inputs to cover up the quantity of input shown in the invoices. There is no evidence that the inputs shown in the invoices received by the appellant were not used in the manufacture of final product. Department has not disputed the correctness of quantity manufactured by the appellant recorded in their daily stock account - The supply of disputed goods has been admitted by the supplier namely M/s Suraj Ltd. that they have supplied the goods to the appellant along with the duty paid invoices. In that situation, we are of the view that the have taken proper care while receiving the goods in their factory to avail the Cenvat Credit.

Section 36B (2) provides the conditions in respect of computer printouts. But, the said procedure has not been followed by the Revenue while relying on the said computer printout /ledgers. Therefore, the said printouts cannot be the piece of evidence to demand cenvat credit from the appellant. As can be seen, one of the conditions for the computer printout to be an admissibleevidence is that the said printout should have been produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer - There is also no investigation to find out whether the said computer data were forming part of the regular books of accounts maintained by the appellant and already found placed in these books. Further no statement of person was recorded who maintained the said data in computer. Therefore on the basis of said computer printout sheet demand of cenvat credit is not sustainable.

The Learned Adjudicating authority for denial of Cenvat Credit to Appellant also relied upon the documents/ records and statements of transporter. It is found that apart from the above, there is no other evidence to reflect upon the fact that the inputs were not actually received by the appellant. However, on the basis of transporters’ records and their statements itself, cannot be held to be sufficient for arriving at conclusion that the inputs were never transported to the appellant’s factory. All the documentary evidence on record supports the appellant’s case about the receipt of the input whereas there is no independent corroborative evidence by the Revenue produced on record. From the cross-examination records, it is also found that transporters also admitted that they have transported the goods from M/s Suraj Ltd. to Appellant company and vice -versa.

The impugned order denying Cenvat credit and ordering its recovery along with interest and imposing penalties cannot be sustained - Appeal allowed.