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2019 (2) TMI 1172 - CESTAT NEW DELHICENVAT Credit - fake invoices - no physical delivery of goods - demand based on third party evidence - appellant’s specific submission that due to the purchase being made on FOR basis that no freight was paid by the appellant and no GR was generated as such the said document is not available with them - Held that:- The Commissioner(Appeals) is still of the opinion that the requisite document as that of the purchase of the raw material by the appellant from M/s UAPL has not been produced on record. Rather perusal of the order makes it clear that the Department has acknowledged about appellant making payment to M/s UAPL against the aforesaid invoices. The documents on record shows that the inputs as received by appellant were first purchased by M/s UAPL from M/s Moral Alloys based at Bhiwadi and the GR in that respect were also produced on record. The Order under challenge has ignored those GRs. There is nothing apparent in the Order about the vehicle nos. mentioned on the said GRs - There is no other evidence on record to support the finding that the vehicle nos. as mentioned in the invoices issued by Shri Amit Gupta were LPG tankers, JCP Machines, auto richshaw rather perusal of the invoices issued by Shri Amit Gupta shows that no vehicle No. is mentioned on those invoices. The findings are based upon the third party evidence without even giving the opportunity to the appellant to confront the evidence recovered from a third party, but against the appellant. The opportunity of cross examination is given under the law as a means of fair trial because it is cross examination only vide which the party gets the opportunity to confront the evidence produced against it. In absence of such opportunity specifically the denial thereof is sufficient to hold that opportunity of fair trial has been denied to the appellant - finding of Commissioner(Appeals) holding that there are clinching evidences to prove the alleged fault of the appellant and that there is no evidence of the appellant in support of defence are actually the findings based on mere presumptions and surmises. Invocation of sub rule 4 of Rule 7 of Cenvat Credit Rules, 2002 - Held that:- The appellant has submitted enough document to discharge the liability as fixed under the above said Rule. As already observed that the findings of Commissioner(Appeals) are in ignorance of the documentary evidence, there arises no reason for invoking the said Rule especially when the demand against the appellant has been confirmed merely on the basis of the oral statement of a third party which received no corroboration from any document as received by the Department from appellant premises. Appeal allowed - decided in favor of appellant.
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