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TMI Blog2014 (2) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... e Joint Commissioner of Central Excise calling upon the assessee to state why Cenvat credit to the tune of Rs.8.99 lacs (rounded off) wrongly availed by them should not be recovered with interest and penalties. The premise for issuing such a notice was that on the basis of specific intelligence that the assessee was engaged in evasion of excise duty by availing Cenvat credit without actually receiving inputs from the sister concern, a search of the factory premises was carried out on 14.3.2007. During search, it was found that stock of 57.425 MT of TMT/CTD bars were found lying in the factory premises. It was further noticed that ingots, scrap and TMB/CTD bars received under various invoices were not available though it was shown as lying in balance as per the account register of the assessee. Statements of one Shri Viral M. Shah, Director of the firm was recorded on the same day where he confirmed the conclusions of the physical stock taking. He stated that MS ingots and CTD/TMT bars were received from Gyscoal Energy Pvt. Ltd. The assessee had also taken cenvat credit on such goods, but found that they were not fit for melting and therefore the same were sold on cash to local trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious plea questioning the notice. Their major plea is that except for RTO verification, there is no other cogent and reliable evidence. Secondly, they have further stated that all these items were recorded in the statutory records, that payments were made through cheques (to emphasize the genuineness of the transactions); that the vehicles nos. were wrongly mentioned as semi-literate persons were handling these work related to preparation of invoices. 13. I would first like to deal with the submissions made vide their letter dated 18.5.2011. As far as doubting the investigation is concerned, I find that a person none other than Director of the firm in his statements has specifically admitted the allegations. In fact he has even accepted the shortage in respect of inputs which was noticed during the course of stock taking during panchnama. To get into the reasons for shortage, the verification conducted through RTO (an independent Government organization) has revealed that the goods were never transported to the Furnace Division. I find that the goods were sold by their sister concern. It is obvious that the payments were made in cheque to give sanctity to these transactions. Being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the foregoing, there remains no doubt that the invoices (as per Annexure B to the notice dated 28.12.2010) issued by M/s.Gyscoal Energy Pvt. Ltd. were not genuine as the vehicle numbers mentioned on the body of the invoices were either not allotted to anybody or the said vehicles were incapable of carrying the quantity of the load factor covered under the said invoices and therefore M/s.Gyscoal Alloys Pvt. Ltd. (Furnace Division) had wrongly availed Cenvat Credit to the tune of Rs.8,99,805/- on the basis of invoices (as per Annexure A) without actually receiving the goods. For the sake of argument, even if the goods were received then also they were removed without preparing Central Excise invoice and without reversing Cenvat credit availed on the same. Hence, even in such a scenario, the credit availed needs to be demanded back. These facts were never revealed to the department with an intent to evade payment of duty. Hence, I hold that the Cenvat Credit to the tune of Rs.8,99,805/- availed on the invoices as mentioned in Annexure A to the notice is liable to be demanded and recovered under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with proviso to Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt of the same and therefore, the penalty has been rightly imposed on the Director." The assessee is therefore before us in appeal. 15.01.2014 Having heard the learned counsel for the parties and having perused the documents on record, we notice that the Revenue Authorities as well as the Tribunal concurrently came to the conclusion that the assessee had indulged into availment of cenvat credit without actually receiving the goods. It was found that the goods were never received in the factory and mere entries were made. This was established through the evidence on record which showed that the vehicles supposed to have been used for transport of the goods could never have been put to such use. The Revenue Authorities relied on the RTO reports which showed that the vehicles in question were of two wheelers and auto-rickshaws which allegedly transported tonnes of goods to the factory premises of the assessee. The assessee did not dispute the RTO reports, but canvassed that the entries in the record could have been made erroneously and hence discrepancy. From the stage of the show cause notice itself, it was alternatively suggested that in view of the short-fall in the stock in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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