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2018 (2) TMI 1018 - AT - Central ExciseCENVAT credit - it was alleged that appellant had wrongly availed Cenvat credit on the basis of invoices, without actual receipt of the goods in its factory - Held that: - except the statements of third party i.e. transporters and the Custom House Agent, the department has not brought any other evidence to substantiate its claim that the goods were not received in the factory of the appellant and Cenvat credit was availed based on the invoices only. Further, though the transporters were called for cross-examination on different dates, but they could not present themselves before the adjudicating authority. Thus, the statement recorded from those transporters cannot be used in isolation for deciding the case against the appellant. Tribunal in the case of M/s Kamdhenu Ispat Ltd. [2017 (9) TMI 546 - CESTAT NEW DELHI] has dealt with identical situation, where the opportunity of cross-examination of the witnesses were not provided to the appellant. Since the onus lies with the department to prove that the Cenvat credit was availed without receiving of the goods has not been satisfactorily discharged, the adjudged demand cannot be confirmed against the appellant. Appeal allowed - decided in favor of appellant.
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