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2016 (8) TMI 1104 - CESTAT MUMBAICenvat credit - fraudulently availed on the dealers’ invoices without receipt of the inputs covered therein - appellant submitted that the goods were purchased, received and used in the appellant's factory as per the various records maintained by them and the goods covered by the invoices were received by the appellants - Held that:- that the department’s whole case is based on transporter’s statement and statement of loading clerk who stated that the goods were not transported to Pune but to Nagpur. I find that mere statement is not sufficient to establish charge of fraudulent cenvat credit. Whether the goods were physically received or otherwise by the appellants is a positive act, which must be proved with tangible evidence beyond any doubtand not with circumstantial evidences. In the present case charge of non receipt of goods was made against the appellant. The director in his statement categorically stated that they have received the goods covered under the sale invoices of dealers, the entries of such receipts were made in the stock account i.e. Form IV register and also in the accounts purchase ledger, the payments of the said purchases were made through cheques. This statement of the director could not be negated by the department. The charge of non-receipt of goods is only on the statements of transporter and loading clerk of the weigh bridge. The said statements can only be relied upon only if the same is corroborated by independent and cogent evidence, which department failed to adduce. Moreover, when this sole evidence was relied upon, which is contradictory to the statement given by the director of the appellants. In such case the department must have allowed the cross examination of the transporter, which department failed to do. Therefore statements of third person without cross examination and without support of corroborative evidence can not be used against the appellants. Hence, the order passed by the adjudicating authority is legal and proper and the impugned order is unsustainable. - Decided in favour of appellant
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