TMI Blog2014 (2) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ole basis of statement of proprietor of M/s Star Associate is to the effect that that they have received only invoices from M/s Vasmin Corporation cannot be made a ground to deny credit to the Appellant Unit. I also find that it is a fact that M/s Star Associates were regularly supplying goods to the Appellant unit in the past also and on no occasion it was found that they have issued invoices without actual supply. Demand is based upon the findings that the octroi receipt shows the delivery of the goods within the municipal limits of the city whereas the factory is situated outside municipal limits. Reliance is also placed upon the statement of the administrator of trucks who denied the transportation to M/s Bajrang and partner of two units who actually alleged to have received the goods without invoices. However I find that only the statement of administrator of truck and octroi receipt the receipt of goods cannot be disputed. I find that the goods were consigned by the ship breakers and no investigation was conducted at their end to ascertain the fact of delivery of goods. Hence no demand can be made against the Appellant. All the purchases were duly recorded in the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that M/s Star Associates has passed CENVAT credit without delivery of goods. That the proprietor of said concern Shri Arjundas Bhagchandani has stated that he had received only invoices from M/s Vasmin Corporation and on the basis of such bogus invoice has passed on the CENVAT credit to M/s Bajrang Castings. Further that some of the driver/ transporters has refused transport of such goods. Reliance is also placed upon the statement of Shri Amit Bhasin. ii) A demand of Rs.5,42,938/- is confirmed on the ground that the goods were charged octroi whereas the factory is situated outside the octroi limit and since there is no question of octroi payment, therefore the goods were not received in the factory. That in majority of the cases the goods has been supplied to other units who have admitted to have received the goods without any central excise invoice. That the administrator of the truck Nos.GJ-1-V-6189, GJ-1-TT-5996 and GJ I UU-8225 in his statement dt.27.09.2003 has stated that he in his red register wrote all the details of place of loading, unloading, date and description of the goods after the trucks were returned from the task of transportation and also refused tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement dt. 06.08.2003 stated that huge payment towards supply of goods for previous year is pending with the Appellant which itself confirms that there have been actual supply of Mild Steel Scrap by M/s Star Associates to the Appellant. The statement of Shri Ajay Arjandas itself is contradictory when he stated that he had no idea regarding the flowback of payment from M/s Vasmin Corporation to the Appellant. That when the goods were received from M/s Star Associates, there was no question of flowback to third party M/s Vasmin Corporation. This clearly shows that the statement of Shri Arjandas cannot be relied upon to confirm demand against the Appellant. The Ld. Counsel also pointed out the contradiction in the statements of Shri Arjandas. He also argued that since Shri Arjandas did not appear for cross examination inspite of being summoned for appearance on 05.03.2007 and 07.03.2007, therefore his statement does not have evidentiary value to make any demand against the Appellant. That in case of Commissioner of C. Ex., Daman Vs. Dhakad Metal Corporation - 2012 (285) E.L.T. 382 (Tri.-Ahmd) it has been held that without cross examination of the broker their statements cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the same is illegal as the same was made on the sole basis of statement of administrator of truck or transporters. The Ld. Counsel submits that the statements or records of administrator/ transporters being third party statements and suffers from lack of any corroboration and hence cannot be relied upon. That though reliance has been placed upon the statement of transporters but no investigation has been done to ascertain as to whether the goods were actually delivered at said places. That in case where no investigation has been conducted either at the consignees place or at the consignor end, no demand of CENVAT can be made against M/s Bajrang Castings. iv) The Ld. Counsel also submits that the demand of Rs.3,26,188/- have been wrongly confirmed against them on the ground that the vehicles numbers were found to be of Tanker/trailer/delivery van/ taxi as the goods were consigned by the ship breakers. No investigation as made at the consignors end and hence only on the aforesaid ground no demand can be fastened upon them in absence of any corroborative evidence. It is his submission that out of the huge demand made in the show cause notice containing more than 1000 consign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no cogent evidence of disposal elsewhere the credit cannot be denied. He also relies upon the judgment in the case of CCE, LUDHIANA Vs. PARMATMA SINGH JATINDER SINGH ALLOYS PVT. LTD. 2011 (266) ELT 67 (TRI-DEL) and MONARCH METALS P. LTD. Vs. CCE, AHMEDABAD 2010 (261) ELT 508 (TRI) to support his claim that the inputs were procured on payment and were duly recorded and therefore the credit cannot be denied. Also that statement of transporter cannot be a ground to deny credit. The Ld. Counsel also submits that since the credit was availed legally and their in no violation of any credit rules, hence no penalty should be imposed upon Shri Amit Bhasin and Shri Shivprasad Pathak. 4. The Counsel appearing for other Appellants rely upon the submission made in appeal memo to support their contentions that as there has been no violation of central excise law, therefore no penalty should be imposed upon them. 5. The ld.Departmental Representative supports the impugned order and submits that from the facts of the case it is apparent that M/s Bajrang has availed inadmissible credit and therefore the confirmation of demand and imposition of penalties are correct. 6. After appreciating submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason to disallow credit of Rs.14,42,177/- to the Appellant. In respect of demand of Rs.5,42,938/-, I find that the demand is based upon the findings that the octroi receipt shows the delivery of the goods within the municipal limits of the city whereas the factory is situated outside municipal limits. Reliance is also placed upon the statement of the administrator of trucks who denied the transportation to M/s Bajrang and partner of two units who actually alleged to have received the goods without invoices. However I find that only the statement of administrator of truck and octroi receipt the receipt of goods cannot be disputed. I find that the goods were consigned by the ship breakers and no investigation was conducted at their end to ascertain the fact of delivery of goods. Hence no demand can be made against the Appellant. Moreover the partners of the firm who are said to have actually received the goods were summoned for cross examination, but they did not appear, in such case their statements cannot be relied upon. The goods were found to be duly shown as received and entered in the factory of the Appellant. The statutory records of the Appellant concern show the receipt and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de payments through Demand Draft. A demand of Rs.13,62,301/- is against M/s Bajrang on the goods supplied by M/s Motabhai Iron Steel, Viramgam based upon findings that the goods were not transported in the same vehicle by M/s Motabhai Iron Steel in which the goods were received by them from M/s Bhushan Steel, Hoogly. It is also contended that one of the owners of the trucks used for transportation denied the transportation of goods and that one of the truck who had transported two consignments was found to be elsewhere and it is not possible for the said truck to be at two places. Reliance has also been placed upon the statement of the godown keeper of M/s Motabhai that he did not loaded any goods for the Appellant. In this context I agree with the submission made by the Ld. Counsel that all the delivery of goods made by M/s Motabhai Iron were accompanied with the duty paying documents. Shri Zaheerbhai jakirbhai Patel of M/s Motabhai Iron Steel in his statement dt. 23.08.2003 nowhere admitted that the Appellant were issued only invoices and non-delivery of goods to the Appellant. Moreover all the payments M/s Motabhai Iron were made through Bank drafts. I also find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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