TMI Blog2009 (1) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... nium Ltd. (hereinafter referred to Hiren for the sake of brevity) are engaged in the manufacture of Aluminium wire rods/bars falling under Chapter 76 of the First Schedule to the Central Excise Tariff Act, 1985 and were availing the benefit of input stage duty credit available in terms of the provisions of Modvat/Cenvat rules, applicable at the relevant times. The raw materials like Aluminium billets, Aluminium rods, Aluminium sheets and coils and ingots etc. were being purchased by them directly from primary producers i.e. INDALCO, BALCO, NALCO, MALCO etc. They were also importing scrap and ingots. Apart form the above, the appellants were also purchasing their input stage requirement of ingots, wire rods, coils and sheets etc. from various consignment agents of primary producer of BALCO, NALCO, INDALCO, MALCO etc. The appellants M/s. Pankaj Aluminium Industries Pvt. Ltd., M/s. Anis Metal Pvt. Ltd. and M/s. Pankaj Metal Pvt. Ltd. were the consignment agents of the primary producers who were appointed by the primary producers as exclusive consignment agents in the Union Territory of Dadra Nagar Haveli. The said appellants were duly registered with the Central Excise Department as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle numbers were not of trucks but submitted that credit cannot be denied on that ground as there is plausible explanation for the same. As the appellants are not disputing the fact that the vehicle numbers shown in the some invoices of the dealers were incorrect, we need not go into that part of the investigations and evidences leading to the above conclusion. The matter has to be viewed by taking into consideration the admitted fact of wrong mentioning of vehicle numbers in the invoices. 7. Ld. Advocate submits that all the dealers, who are registered with the Central Excise Department, are consignment agents of the primary producers of the various products like INDALCO, BALCO, NALCO, MALCO etc. The said consignment agents have purchased Aluminium ingots, wire rods, sheets etc. from the primary producers and were issuing further invoices from their office, though the goods moved to the said appellants factory in the same trucks, which transported the goods from the factory of the primary producers. As the appellants manufacturing unit was located in the same industrial area of Silvassa, in which the offices of the consignment agents were located, there was no occasion for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denial of credit merely on the wrong mentioning of vehicle numbers is not justified. Ld. Advocate has also relied upon number of decisions to support his pleas. 8. Countering the arguments ld. DR reiterates the findings of the adjudicating authority and submits that they have intentionally shown excess production so as to accommodate the non-received inputs and such excess production stands cleared by them to another unit by the name of M/s. Apurva Aluminium Corporation Ltd. However, ld. DR has agreed that such clearances were on payment of duty. 9. We have considered the submissions made by both the sides and have gone through the impugned order passed by the Commissioner. The adjudicating authority has concluded that Hiren did not receive/procure the inputs but received only invoices issued by the registered dealers, which are their own sister concerns. The above findings stands primarily on the fact, that the vehicle numbers mentioned in the invoices issued by the registered dealers were not capable of transporting heavy materials. This fact is not being disputed by the appellants. The same stands explained by the appellant that such change in vehicle numbers by the dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nputs. 11. It stands contended by appellant that during the disputed period i.e. 1999-2000 to October, 2003, they have received and consumed 39696 MT of inputs as reflected in their statutory records. The wire rods i.e. their final product manufactured during the said period is 37142 MT. As per the allegation made in the show cause notice, the raw material to the extent of 2738 MT is actually not received by them, though shown to have been received in the statutory records. If this allegation is upheld, the raw material s quantum would come down to 34959 MT (i.e. 39696 MT - 2738 MT). There is no dispute about the quantum of final product i.e. 37142 MT. Such quantum of final product cannot be manufactured out of the quantity of inputs, as contented by Revenue. This fact is itself sufficient to unsustain the Revenue s case. 12. Further, the adjudicating authority, while dealing with the appellant s contention that in banks have certified the stock records, has observed that for the purposes of stock declaration the banks in case of hypothecation, there is no relevancy between stock position in view of statutory Central Excise records having details such as documents description, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destine removal are always secret and nobody would disclose it since it may go against him. As such, the private records, the secrecy of which is steel guard, cannot be brought on record. And in such cases there is always preponderance of probability. As is seen from the above, the findings of the adjudicating authority are moving in the realm of surmises and conjunctures inasmuch as the expressions might have , must have , stands used by him. It is well settled that the charges of clandestine removal are required to be based on concrete and tangible evidences and not on the basis of probabilities. The adjudicating authority has also referred to the statement of M/s. Ekta Road Carriers, which is not relevant inasmuch as the statement is in respect of the movement of goods from the factory of Hiren to M/s. Apurva Aluminium Corporation and was not in respect of movement of inputs from the dealers premises to the appellant s factory. 14. Similarly while dealing with the appellant s contention that the Department has not proved as to what happened to the inputs nor have they disputed the production out of the said inputs, Commissioner has observed that the Department is not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that merely because wrong vehicle numbers were given in the invoices, the same cannot be held to be fake and non-receipt of inputs under the cover of the same cannot be upheld. Further, we find that the Tribunal in the case of CCE, Chandigarh v. Shakti Roll Cold Strips Pvt. Ltd. [2007 (80) RLT 267 (CESTAT-Del.), by taking note of the earlier decisions of the Tribunal, has held that the credit cannot be denied only on the ground that vehicle numbers given in the invoices were not of the trucks, when payment for goods was made by cheque/draft and inputs were used in the manufacture of final product which were cleared on payment of duty, RT-12 returns were assessed and there was no evidence of use of alternative inputs. Accordingly, Tribunal rejected the appeal filed by the Revenue. The matter was taken up by the Revenue before the Hon ble High Court of Punjab Haryana, who vide their judgment as reported in 2008 (229) E.L.T. 661 (P H) = 2008 (87) RLT 793 (P H) rejected the same. Similarly in the case of M/s. Steel Tubes of India Ltd. v. CCE, Indore [2008 (87) RLT 630 (CESTAT-Del.)], it was held that merely because vehicle numbers mentioned in some of the invoices are not o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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