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2018 (5) TMI 818 - AT - Central ExciseCENVAT credit - inputs - Clandestine removal - invoices were provided without supplying the goods - case of the department is solely based on the statements of Shri Amit Gupta and other transporters, for which no cross examination was provided - Held that: - In the instant case, it appears that the appellant has availed the cenvat credit on the basis of such duty paying documents and cleared the goods manufactured on payment of duty, which was accepted by the department without any objection. As per the chart mentioned in the impugned order, the departmental officers expressed doubt about the genuineness of sales of the appellant company which is about 50% of the total turn over. Therefore, when the sales are genuine, then such genuine sales is possible only with genuine purchase of standard raw material - The allegation that appellant was procuring the same from the open market on cash basis, is not sustainable for the reason that the appellant has to maintain higher standard of quality to make major supplies either for export or to the companies which are operating in atomic energy, power, defence, oil refining etc. In the instant case, no physical verification of stock was done. No shortage of physical stock was identified. Regarding the allegation that payment was made through banking channel and was received back in cash is not sustainable for the reason that no cash was seized from the appellants premises. Department has made out a case of irregular availment of cenvat credit mainly based on the statement of Shri Amit Gupta and transporters, but no cross examination of the witnesses was provided to the appellants. One of the witnesses has retracted his earlier statement. Surprisingly, in the instant case, no inquiry was made from the customers of the appellant company. Appeal allowed - decided in favor of appellant.
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