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2014 (2) TMI 63 - CESTAT AHMEDABADAvailment of CENVAT Credit - Credit availed without delivery of goods - Goods were charged octroi whereas the factory is situated outside the octroi limit - Held that:- demand is on the basis of statement consignor of goods that he has received only invoices from M/s Vasmin Corporation, Bhavnagar without physical receipt of M.S. Scrap and on the strength of such bogus invoices, he has passid on the CENVAT credit to the Appellant unit - M/s Star Associates being registered dealer under central excise issued invoices to the Appellant who has duly recorded the receipt of such goods in their records and made payment through banking channels. There is no such evidence that the said amount towards purchase was received back by the Appellant and in support of contention that the goods were transported, reliance was placed on Form 40 of the Sales Tax and purchase tax was paid by the supplier as seen from the ledger annexed with the appeal. Demand cannot be fastened upon the Appellant on the basis of his statement. I find that only on the sole basis of statement of proprietor of M/s Star Associate is to the effect that that they have received only invoices from M/s Vasmin Corporation cannot be made a ground to deny credit to the Appellant Unit. I also find that it is a fact that M/s Star Associates were regularly supplying goods to the Appellant unit in the past also and on no occasion it was found that they have issued invoices without actual supply. Demand is based upon the findings that the octroi receipt shows the delivery of the goods within the municipal limits of the city whereas the factory is situated outside municipal limits. Reliance is also placed upon the statement of the administrator of trucks who denied the transportation to M/s Bajrang and partner of two units who actually alleged to have received the goods without invoices. However I find that only the statement of administrator of truck and octroi receipt the receipt of goods cannot be disputed. I find that the goods were consigned by the ship breakers and no investigation was conducted at their end to ascertain the fact of delivery of goods. Hence no demand can be made against the Appellant. All the purchases were duly recorded in the statutory books of the Appellant and the goods were also found to be entered in statutory records of the Appellant. No investigation has been made at unit of M/s Bajrang which could have supported the findings of the adjudicating authority. None of the consignor of the goods has denied the clearance of goods to M/s Bajrang. There is no evidence which can show that the records maintained by the Appellant are not correct. Only on the basis of statement of some of the transporters, the huge credit is sought to be disallowed whereas the statements are in isolation with no corroboration. I therefore hold that the impugned order for disallowance of credit to the Appellant is not sustainable - Decided in favour of assessee.
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