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2015 (5) TMI 288 - CESTAT NEW DELHI

2015 (5) TMI 288 - CESTAT NEW DELHI - TMI - Denial of CENVAT Credit - Bogus transactions - Imposition of penalty - Held that:- Burden of proof on M/s Kisco Casting cannot be treated as discharged by them on the basis of the news paper's report reporting that a number of vehicles are running in the State of Punjab & Haryana under fake registration, and therefore, the Commissioner (Appeals) relying upon such newspaper reports is totally wrong - returns have been assessed finally by the range o .....

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so by picking the holes in the Department's case or shifting the burden of proof to the Department. The burden of proof will shift to the Department only when M/s Kisco Casting have produced credible evidence in support of their claim of receipt of the goods covered under the invoices issued by the Respondent. - impugned order is not sustainable - Matter remanded back - Decided in favour of Respondent.

As regards penalty on Rajesh Kumar Gupta & Sons - Held that:- penalty had been .....

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n of penalty twice over, which is not sustainable in the eyes of law. - Decided against Revenue. - Excise Appeal Nos. E/3552-3553/2005- Ex[ DB] - Dated:- 12-3-2015 - Rakesh Kumar, Member (T) And S. K. Mohanty, Member (J),JJ. For the Petitioner : Mr Yashpal Sharma, Adv. For the Respondent : Naveen Bindal , DR ORDER Per: Rakesh Kumar: The facts leading to filing of these appeals, are in brief, as under: 1.1 M/s B. D. Gupta and Sons, Mandi Govindgarh (hereinafter referred to as the Respondent) are .....

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ued by the respondent, took cenvat credit of Rs . 4,15,844/-. The Department conducted inquiries in respect of the transactions between the respondent and M/s Adhunik Alloys Ltd., in course of which the registration number of vehicles, which were mentioned in the invoices issued by the Respondent were got verified through RTO . On verification it was found that in all these invoices issued by the respondent firm, the vehicles No.s were of two wheelers, three wheelers, tankers etc., in which the .....

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005 confirmed the above mentioned cenvat credit demand of Rs . 4,15,844/- along with interest and besides imposing penalty on M/s Kisco Casting, also imposed penalty on M/s BD Gupta and Sons ( Respondant ) for having issued bogus invoices without supply of any material. The penalty imposed on the Respondant firm is Rs . 4,15,844/-. Besides this, the joint commissioner also imposed penalty of ₹ 2 lakhs on Sh. Rajesh Kr .Gupta proprietor of the respondent firm. 1.2 On appeal being filed to C .....

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cles numbers which were of non-transport vehicles in which the goods covered under the invoices could not be transported, in terms of the judgement of the Tribunal in the case of Ranjeev Alloys Ltd. Vs CCE Chandigarh reported in 2009 (236) ELT -123 which has been upheld by Hon'ble Punjab & Haryana High Court vide judgement reported in 2009 (247) ELT 25 ( P&.H ), the burden of proving that M/s Kisco Casting had received material covered under invoices issued by M/s B D Gupta and Sons .....

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n fake registration and also on a similar news item in Time of India of 13.08.2002. He pleaded that the Commissioner (Appeals)'s reliance upon these news items and the Respondent's plea that payment for the goods had been made by M/s Kisco Casting through cheque and Demand Draft and the Department has not been able to establish the receipt of any other alternative raw material by M/s Kisco Casting, is not correct. He accordingly pleaded that impugned order is not correct. 4. Shri Naveen .....

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ons from both the sides and perused the records. The respondent firm is a second stage dealer and Sh. Raj Kumar Gupta is its proprietor. According to the respondent firm, they had purchased iron and steel scrap from M/s Adhunik Alloys, first stage dealer, who is a consignment agent of TISCO . The scrap had been supplied from M/s TISCO's stockyard in Mandi Govind Garh . According to the respondent firm, they had sold 16 consignments of scrap to M/s Kisco Casting during the above period from 1 .....

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ab & Haryana High Court would become applicable, and accordingly, the burden of proving that the consignments of scrap supplied by the respondent firm under their invoices had actually been received by M/s Kisco Casting would be on M/s Kisco Casting. In our view, this burden of proof on M/s Kisco Casting cannot be treated as discharged by them on the basis of the news paper's report reporting that a number of vehicles are running in the State of Punjab & Haryana under fake registrati .....

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e of the final product, and (c) the RT_12 returns have been assessed finally by the range officer which contain all the details including the details of the invoices under dispute on the basis of which credit have been availed and utilized, is , not correct, as when the burden of proving that the material covered under the invoices issued by the respondent firm had actually been received by M/s Kisco Casting is on them, it is M/s Kisco Casting who has to lead the evidence of having actually rece .....

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