TMI Blog2014 (10) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... n deleting the aforesaid demands. All the goods supplied by M/s. Motabhai Iron & Steel were accompanied by documents evidencing payment of duty. The representative of M/s. Motabhai Iron & Steel had nowhere admitted that the assessee was issued only invoices and that there was no delivery of goods to the assessee. Besides, all the payments that were made to M/s. Motabhai Iron & Steel were made through bank drafts. The Tribunal has also noted that, in all, demand was made in respect of 44 consignments. However, it was only in respect of two transporters, who had transported merely three consignments that the alleged discrepancy had been pointed out, whereas, in case of other transporters, no discrepancy has been found. In the light of the aforesaid findings recorded by the Tribunal, it cannot be said that there is any error in the conclusion arrived at by the Tribunal while deleting the demand - Decided against Revenue. - Tax Appeal No. 824 of 2014, Tax Appeal No. 825 of 2014, Tax Appeal No. 829 of 2014 - - - Dated:- 3-9-2014 - Harsha Devani And Sonia Gokani,JJ. For the Appellant : Mr. YN Ravani, Advocate For the Respondent : Mr. Deven Parikh Sr Advocate with Mr. Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Based on intelligence, on 29th July 2003, searches were conducted by the officers of the Central Excise, Ahmedabad II at the business premises of the assessee. During the course of the searches, it was found that the modus operandi adopted by the assessee was to procure cenvatable invoices from the shipbreakers of Alang and the registered dealers/traders without actually receiving the goods mentioned in the central excise invoices. To compensate this supply of raw materials, the concerned assessee procured local nonexcisable scrap from the local suppliers and produced MS Ingots from it and cleared it from the cenvat credit taken on the basis of above mentioned cenvatable invoices to avoid payment of duty from PLA on the clearances of the finished goods. In this regard, inquiry came to be extended to various registered dealers namely (a) M/s. Star Associates, Ahmedabad, (b) M/s. Vasmin Corporation, Bhavnagar, (c) M/s. Motabhai Iron Steel Industries, Viramgam who allegedly had fraudulently issued cenvatable invoices. During the course of searches and further inquiry, statements of Shri Amit Bhasin, Director of the assessee, Shri Shivprasad Pathak, Supervisor of the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the invoice issued by M/s. Star Associates but without receiving the material; (ii) A demand of ₹ 5,42,938/was confirmed on the ground that the cenvat credit which was availed and utilized by the assessee was in fact for the goods which were delivered to other buyers within the limits of the Ahmedabad Municipal Corporation for which octroi had been paid, whereas, the factory of the assessee was situated outside the octroi limit, hence, there was no question of payment of octroi; (iii) A demand of ₹ 2,57,347/was based upon the statement of the administrator of the truck, who had stated that no delivery of goods had been made to the factory of the assessee; (iv) A demand of ₹ 3,26,188/came to be confirmed on the ground that as per the verification report submitted by the Regional Transport Officer, in seventeen cases, it was found that the vehicles which were shown to have transported the goods were not capable of carrying the goods, therefore, the question of receipt of such goods did not arise, despite which cenvat credit had been taken; (v) A demand of ₹ 5,83,537/came to be confirmed on the ground that as per the truck owners/drivers, the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoices. According to the learned counsel, non appearance of these two persons for cross examination has no effect as their statements are supported by the statement of Shri Usufbhai Talat, the administrator of three trucks which is in the nature of independent evidence. Attention was invited to the findings recorded by the adjudicating authority to point out that despite a plethora of evidence establishing that the assessee had not received duty paid goods and had wrongly availed cenvat credit on such goods on the basis of bogus invoices, the Tribunal has, on an improper appreciation of evidence on record, allowed the appeals. It was, accordingly, urged that the appeals require consideration on the questions of law as proposed, or as may be formulated by this court. 7. Opposing the appeals, Mr. Deven Parikh, learned senior advocate with Mr. Rohan Shah, learned advocate for the respondent in each of the appeals submitted that the Tribunal has, upon appreciation of evidence on record, recorded findings of fact and based its conclusion thereon. It was contended that there is no perversity in the findings recorded by the Tribunal and in absence of any perversity in such findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for his cross examination. He was summoned twice but he did not appear. In such a case, I tend to agree with the contention of the Appellant that the demand cannot be fastened upon the Appellant on the basis of his statement. I find that only on the sole basis of statement of proprietor of M/s. Star Associates is to the effect 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. I also find that statement of Shri Bhasin, Director of the Appellant unit was recorded in respect of credit an amount of ₹ 77,627/= said to be received by some other party. However, the said statement was retracted by Shri Bhasin very next day. In such view of facts, and my above view, I do not find any reason to disallow credit of ₹ 14,42,177/= to the Appellant. 9. From the findings recorded by the Tribunal, it is apparent that the sole basis of the demand was the statement of Shri Arjandas who did not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id third parties. Neither there is any evidence that the said third parties have made any payment to the suppliers of the goods. I therefore find no reason to disallow credit of ₹ 5,42,938 to the Appellant. 11.From the findings recorded by the Tribunal, it is apparent that no investigation had been taken by the Department at the end of the suppliers to ascertain the facts regarding delivery of goods. Moreover, the statutory records of the assessee concerned, shows receipt and consumption of goods. There was no statement of the supplier that the goods were not supplied to the assessee and were supplied to a third party. In light of the aforesaid facts, it cannot be said that the findings recorded by the Tribunal are in any manner erroneous. 12.In respect of the demands of ₹ 2,57,347/and ₹ 5,83,537/, the Tribunal has recorded, thus: Similarly, I find that demand of ₹ 2,57,347/and ₹ 5,83,537/is also based upon statement of administrator/transporter/drivers of trucks who denied that there was delivery of the goods to the factory of the Appellant. This demand has been confirmed against the Appellant on the ground that the consignments have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d inputs from first dealer and made payments through Demand Draft. 15. Thus, the demand of ₹ 3,26,188/was based upon the fact that the vehicles which were shown to have transported the goods were not capable of carrying such goods. However, the Tribunal upon appreciation of the evidence on record has found as a matter of fact that the goods were duly found to have been recorded in the assessee's factory and were consumed in production. Moreover, payment was made through banking channels and no investigation had been made at the consignors' end in this regard. Under the circumstances, no error can be found in the findings recorded by the Tribunal so as to warrant interference. 16. In respect of the demand of ₹ 13,62,301/, the Tribunal has recorded thus: A demand of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k drafts. The Tribunal has also noted that, in all, demand was made in respect of 44 consignments. However, it was only in respect of two transporters, who had transported merely three consignments that the alleged discrepancy had been pointed out, whereas, in case of other transporters, no discrepancy has been found. In the light of the aforesaid findings recorded by the Tribunal, it cannot be said that there is any error in the conclusion arrived at by the Tribunal while deleting the demand of ₹ 13,62,301/. 18.As regards the demand of ₹ 2,94,274/, the Tribunal has recorded thus: In respect of demand of ₹ 2,94,274/on the ground that M/s. Vasmin Corporation has only issued the invoices to the Appellant as accepted by Shri Shabbirali Vasaya of M/s. Vasmin Corporation, I find from the facts that the statement of proprietor of M/s. Vasmin Corporation, Shri Shabbir Ali was recorded after three years ie., 25.10.2005 of issue of Bills in favour of appellant and even that statements was retracted by him the very next day i.e., 26.10.2005. In such case his statement losses its evidentiary value. Apart from above, I also find that payment to M/s. Vasmin Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
