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2016 (3) TMI 96 - AT - Central ExciseDenial of CENVAT credit - Cenvat Credit on the basis of the invoices issued by M/s. R. K. Enterprises - Held that:- In this case, it is no doubt, case has been booked on the statement of Shri R. K. Gupta proprietor of M/s. R. K. Enterprises who initially stated that he has merely issued the cenvitable invoices, on the basis of which respondent has taken the credit. In fact the respondent used to give payment of these invoices through cheques and equivalent amount of cash has been returned. It is also a fact on record an investigation was conducted at the end of the respondent also wherein nothing incrimatory was found. Further, from the proceedings it is revealed that the respondent sought cross examination of Shri R. K. Gupta as well as transporters of the goods but Adjudicating Authority inspite of giving cross examination has gave its finding that charges has been alleged on the basis of corroborative evidence, therefore, no cross examination is to be given. In fact, the statement of Shri R. K. Gupta has been retracted on the first available opportunity before chief metropolitan Magistrate. These things have not been considered by the adjudicating authority while adjudicating the matter. As one of the transporter states that he is having three tempos and when these tempos used to transport the goods either he personally drives the tempos or he will be accompanying the driver of the tempo. No prudent men can drive three tempos at a moment. Moreover, he cannot be present in three tempos at a time. This statement has been relied upon by the Adjudicating Authority in support his case of non receipt of the goods by the respondent. As no cross examination has been awarded to the respondent the Ld. Commissioner (A) has rightly set aside the proceedings initiated in the show cause notice impugned. - Decided against revenue
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