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2018 (12) TMI 1178 - AT - Central ExciseClandestine removal - bazar scrap - the entire case of the Revenue and the Adjudicating Authority while holding against the main appellant is on statements recorded of individuals, it is also recorded that corroborative evidence documentation on which defence for availing CENVAT credit was not produced - Held that:- The Adjudicating Authority has not brought on record in the findings portion, how he has come to a conclusion that there were purchases of bazar scrap and the same was unaccounted; there is nothing on record to indicate the investigation was taken up with scrap dealers - there seems to be no evidence in any form to indicate purchases of unaccounted bazar scrap. Registration number of vehicle mentioned - Held that:- The document indicated was of a Bajaj pulsar motor cycle, the Lorry/Trailer Numbers are specifically mentioned does indicate so, it is not proved beyond doubt that the vehicle number of Bajaj Pulsar was mentioned intentionally on behest of main appellant. Further it can be noticed that the main appellant was taking a consistent stand before the lower authorities they had religiously recorded the receipts and consumption of imported goods in the statutory of books and cleared manufactured products on payment of appropriate duty. The details as given by main appellants in form of RG-23A part I&II, RGI etc., are not controverted by the Adjudicating Authority in the findings (which are reproduced herein above) but pleas were dismissed by recording that the main appellant had not produced evidence of receipt of materials in their factory. The main appellant’s contention that they had manufactured final products and cleared the same during the period in question remains uncontroverted. As regards the RG-23 part I& II and statutory books - Held that:- This position is unchallenged, it can be noted that same were maintained and produced before audit parties during scrutiny of records, on various dates for the period in question. If that be so and there being no adverse observation in the various audit report, as to there may be a case of non-receipt of inputs, entire case of the revenue is based on the statements will fall under its own weight as during cross examination the individuals have denied to have made the statements, which would mean that there is lack of cogent evidences. On this ground itself the entire demand fails. CENVAT Credit - CVD paid on the Bills of entry was availed without receipt of inputs - Held that:- The individuals who were handling business activity of the main appellant i.e., Shri PR Bhandari, Shri U.M. Bhandari, Shri Virendra and Shri Surendra Bhandari, had not given any statement which is inculpatory in nature to indicate CENVAT credit was availed without receipt of any materials. In the absence of any corroborative evidences, it has to be held that the Revenue has not been able to prove that CENVAT credit of the CVD paid on the Bills of entry was availed without receipt of inputs. Demands confirmed on letter written by Concor Corporation that there was receipt of imported goods at Turbhe and transported to place other than Hyderabad - main appellant had been seeking cross examination of the officials, which was declined by the Adjudicating Authority - Held that:- It is settled law that no reliance can be placed on a document which is not tested in cross examination if specifically sought. At the same time, the Adjudicating Authority should be extended an opportunity to consider the plea of cross examination of the individuals from Concor Corporation - appeal allowed by way of remand. Penalties also cannot be sustained. Appeal disposed off.
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