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2014 (7) TMI 532 - AT - Central ExciseCenvat Credit - Availing credit without receipt of inputs being pet coke - manufacturing of Cement and Clinker - the case of the Revenue is mainly based on two evidences i.e. the Test Report of NSIC and the statements of suppliers of Pet coke and of the out-station buyers of Pet coke who were allegedly interested in only getting Pet coke without any Cenvatable invoice. - Confiscation of goods - Redemption fine - Penalty - Held that:- having rejected cross-examination, it was not open to the Commissioner to place reliance upon the statements. Revenue has failed to bring anything on record to clarify which specific invoices were given to New Kishan Cement and Major Cement without supply of ‘pet coke’. - the allegation of non-receipt of pet coke from Radhey Vyapar Ltd, is totally presumptuous. The inference drawn in the impugned order regarding non-receipt of pet coke, therefore, is not supported by the evidence on record. Regarding non-receipt of pet coke from Jayshree Vyapar Ltd, we find that the only documentary evidence is in the form of Daily Dispatch Register prepared by Pratham Transport, Jamnagar. We find from the record that entries made in the Daily Dispatch Register shows diversion only in respect of 8 trucks. The said entries show supplies being made to Major Cement and not to New Kishan Cement. Supplies made to New Kishan Cement cannot be disputed in any event. However, while examining the issue as to whether the entries made in the Daily Dispatch Register with regard to supplies made to Major Cement could be accepted as correct, we find that there is no tangible evidence to support the said entries. Moreover, it is not the case of the Revenue that the said entries were made under the instruction of New Kishan Cement and Major Cement. New Kishan and Major Cement have absolutely no control over the said records. Therefore, we accordingly hold that the allegation of only receiving invoices from Radhey Vyapar Ltd without physically receiving pet coke, cannot be sustained. Commissioner while ordering for confiscation, imposing redemption fine and penalty, in connection with the Show Cause Notice dated 21.10.08, has not entered any categorical finding to sustain the said order - Impugned order is set aside - Decided in favour of assessee. Issue of Corrigendum show cause notice after 2 years to deny the test report - Held that:- Corrigendum to Show Cause Notice (as referred hereinabove) was issued almost after a period of two years. Moreover, the Corrigendum was issued for deleting the para on which New Kishan Cement and Major Cement was strongly relying upon. It appears as though the corrigendum was issued to defeat the stand taken by New Kishan Cement and Major Cement. Issuance of Corrigendum at a belated stage also fortifies the stand of New Kishan Cement and Major Cement that the test report of the samples drawn on 26.4.08 was apparently in their favour. - Decided in favor of assessee.
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