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2018 (6) TMI 116 - AT - Central ExciseCENVAT credit - non-receipt of inputs - some of the vehicles found non existence and not capable of transportation of goods are other than tankers - main reason to issuance of the show cause notices to denial of the cenvat credit to the assessee is that the trasnport vehicles are not entered at ICCs, therefore, it was alleged that the assessee has not received the inputs. Held that:- A similar issue came up before this Tribunal on the same investigation in the case of M/s Adhunik Alloys Ltd. [2016 (5) TMI 894 - CESTAT CHANDIGARH] wherein this Tribunal has held that merely, the vehicles in question were not entered at ICC does not dis-entitle to the appellant to avail cenvat credit on the inputs in question. As the appellant has produced the certificate issued by Excise & Taxation Officer of Punjab certifying that these goods have been received in their factory, therefore, the cenvat credit cannot be denied. During the course of adjudication, the assessee has produced certificate issued by the Excise and Taxation officers, Ldh certifying that the assessee has received the material on each and every one of the disputed invoices and the same has been reconfirmed by the adjudicating authority from Excise and Taxation officers, Ldh. who vide his certificate confirmed that certificate dated 10.10.2006 was duly issued by the office. As one of the Government Department has already certified that on the basis of the invoices in question, the asseessee has received the goods, therefore, relying on the decision of this Tribunal in the case of M/s Adhunik Alloys Ltd., the assessee is entitled to avail cenvat credit on the invoices in question on which the adjudicating authority allowed the cenvat credit to the assessee. CENVAT credit denied on the basis of the statement of Shri. Kamal Gupta son of the owner of M/s Gupta Transporter Company, who has stated that never transported any material for M/s Lakra Oil Trading (LOTC) - cross-examination not granted - Held that:- The appellant sought cross examination of Shri. Kamal Gupta. The said cross examination was not granted to the assessee. In that circumstances, the statement given by Shri. Kamal Gupta is inconclusive and the same cannot be relied upon - demand set aside. Demand of ₹ 1,75,350/- that has been confirmed on the basis of the statement of Shri. G.C. Arya of M/s APPL - Held that:- The said statement was retracted by Shri. G.C Arya at first available opportunity and no cross examination was granted to the asssessee of Shri. G.C. Arya, therefore, the statement recorded of Shri. G.C. Arya have no relevance to deny cenvat credit as the same has not been tested by way of cross examination - demand set aside. Demand confirmed on the ground that the vehicles which have been mentioned in the invoices are not capable of transportation of goods in question as the vehicles are not tankers - Held that:- Admittedly, without tankers, the impugned goods cannot be transported and the appellant has failed to come up with any supporting explanation to the allegation. In that circumstances, the demand of ₹ 1,01,048 is confirmed - penalty also not imposable. Appeal allowed in part.
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