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2022 (3) TMI 99 - AT - Central ExciseCENVAT Credit - bogus transaction - fake invoices - entire transaction were based upon fake invoices, which were merely on paper - burden/onus to prove - HELD THAT:- Ld. Commissioner has nowhere observed that the Appellant had actually received the said capital goods from other alternate source. Therefore, the whole case of the department that the transactions with M/s. Saha Industries were fake transactions and the Appellant took credit without receipt of the capital goods or non receipt of the goods clearly falls down - Even in the show cause notice it was alleged that the Appellant had utterly failed to verify the antecedents of the supplier-manufacturer for the purpose of availing of Cenvat credit. This would also mean that the goods were actually received by the Appellant without verifying the antecedents of the supplier- manufacturer. It is well settled law that onus of proof that the Appellant received the capital goods from some other source was squarely on the department which it failed to prove. On the contrary in the show cause notice sweeping allegations were made that the Appellant had taken Cenvat credit without receipt of the capital goods - reliance can be placed in the case of Uniworth Textiles Ltd Vs. CCE, Raipur [2013 (1) TMI 616 - SUPREME COURT] and Kishanch and Chellaram Vs. Commissioner of Income Tax [1980 (9) TMI 3 - SUPREME COURT] wherein it has been held that the burden of proof is on the person who makes the allegation and not vice versa - the present case is on a higher pedestal as the capital goods received from M/s. Saha Industries were duly installed in the factory of the Appellant and were being used in the manufacture of finished goods. The Department failed to bring on record any contrary evidence. The Hon’ble Allahabad High Court in Juhi Alloys Ltd [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT] relied upon the findings of the Tribunal as well as Commissioner (Appeals) wherein it was held that the transaction on the part of the assessee was bona fide and a buyer can take only those steps which are within his control and would not be expected to verify the records of the supplier to check whether in fact he had paid duty on the goods supplied by him. The only reasonable step which he can take is to ensure that the supplier is trustworthy, the inputs are in fact received and that the documents, prima facie, appear to be genuine. The fact that the assessee made payment by cheque was held to be a proof of his bona fides - In the present case the above findings rendered by the Hon’ble Allahabad High Court are applicable on all fours to the facts of the present case. Time limitation - the period involved is from Sept- Oct 2006 to Feb-March, 2007 and the show cause notice was issued on 01-07-2009 under extended period of limitation - HELD THAT:- There is no evidence that even if the goods were not actually manufactured by M/s.Saha Industries the fact remained that the same were duly received by the Appellant and M/s.Saha Industries have duly discharged the central excise duty on the same. In such a case following the law laid down by the Hon’ble Gujarat High Court extended period of limitation could not be invoked against the Appellant. The Ld. Commissioner has therefore erred in confirming the duty demand under extended period of limitation. The impugned Order cannot be sustained both on merits and on the point of limitation - Appeal allowed - decided in favor of appellant.
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