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2018 (11) TMI 412 - AT - Central ExciseCENVAT Credit - fake invoices - non-receipt of raw materials like Pig Iron, Iron Scrap and MS Scrap - case of Revenue is that these items were neither received by the appellants nor used in their factory premises for manufacture of their finished goods and only the invoices were received to take ineligible cenvat credit - demand mainly based on statements and opinion of various persons - Held that:- The report of the Daily News Paper i.e. Financial Express of 06.02.2004 confirms the version of the appellant that during the impugned period there was a shortage of pig iron and the appellants have to supply goods to their buyers, therefore, the appellants used HR Coils/Sheets to manufacture of iron castings and no contrary evidence has been produced by the revenue to counter the contents of the article published in Financial Express, therefore, it cannot be said that the appellants have never used H.R. Coils/Sheets to manufacture of Iron Castings. Reliability on statements - Held that:- During the course of investigation, various statements of Shri Rakesh Gupta, proprietor of M/s Shivam Corporation were relied upon but during the course of cross examination, Shri Rakesh Gupta confirmed that his statements were recorded in threat and coercion and he has supplied goods against all the invoices and received consolidated payments periodically from the buyers in respect of all the raw materials. No counter statements of Shri Rakesh Gupta in cross examination has been produced by the revenue, therefore, the statements given by Shri Rakesh Gupta during the course of investigation cannot be relied upon - Moreover, the other supplier, namely, M/s Ganesh Enterprises and M/s Gautam Steel Traders were not appeared for cross examination, therefore, their statements cannot be relied upon. Also it cannot be said that the use of HR Coils/Sheets is not economically viable when the appellants have earned profit during the impugned period. Another allegation made against the appellant is that they have received the payments made through cheque in cash, therefore, it is only the paper transaction - Held that:- The revenue has failed to come up with positive evidence to show that the appellants have received cash against the cheques issued by the appellant for the impugned goods against the invoices. It is also revealed from the records that the appellants are procuring pig iron from the same supplier and mode payment in the same, in that circumstances, how it can be possible with regard to H.R. Coils/Sheets, therefore, the said allegation is not justified by the Revenue. If it is presumed that the impugned goods, namely, H.R. Coils/Sheets were not received by the appellants then from where the appellants received the raw-materials to the manufacture of such huge quantity of goods which have been cleared on payment of duty, no investigation was conducted by the revenue to that effect, in that circumstances, it cannot he held that the appellants have not received H.R. Coils/Sheets to manufacture of iron castings. Revenue has failed to establish with the corroborative evidence that the appellants have not received H.R. Coils/Sheets to manufacture of iron castings in their factory premises, therefore, the demands against the appellants are not sustainable - appeal allowed - decided in favor of appellant.
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