Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (7) TMI 669 - CESTAT AHMEDABAD

2015 (7) TMI 669 - CESTAT AHMEDABAD - TMI - Eligibility to CENVAT Credit - whether main Appellant is eligible to CENVAT Credit on the basis of proper CENVAT taking documents when the First Appellate Authority has held that only documents were obtained by the main Appellant and no inputs were accompanied by these documents - Held that:- Entire emphasis is on the statements of third parties to establish the case. Appellant was requesting the Adjudicating authority for cross-examination of all thes .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

third party witnesses given. Further, there is no evidence of alternative purchase of raw material by the Appellant for manufacture of goods cleared on payment of duty during the relevant period - case cannot be made only on the basis of note books maintained by the workers unless supported by corroborative evidence with regard to purchase of material, seizure of goods, money flow back etc. No cash has been seized any where when huge cash transactions are alleged to have been made. - Decided in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Ahmedabad as First Appellate Authority. Appeal No.E/10689/2015-SM is filed by Shri Amit R. Bhasin, who is the Director of the main Appellant. 2. Shri Alok Barthwal (Advocate) and Shri R.K. Jain (Advocate) appeared on behalf of the Appellants. Shri Alok Barthwal argued that main Appellant was the manufacturer of M.S. Ingots before its closure from M.S. Scrap and Ferrous Alloys obtained from different sources. That investigations were conducted at the end of a Broker Shri Bharat Sheth by DGCEI on .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ely against cash payment as per the investigation. That certain statements of the transporters, employees of Shri Bharat Sheth, few ship breaking units and angadias were recorded by the investigation to rely upon and conclude that all purchase of M.S. Scrap was only on paper and no inputs were received by the main Appellant. 2.1 Learned Advocate argued that the inputs received was M.S. Scrap as per the invoices whereas as per the records of Brokers M.S. Plates were supplied to re-rolling mills. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n Appellant. That there was no excess or shortage of raw materials detected during the entire operation from the Appellant. That there is no statement from the Director or employee of the main Appellant that inputs were not received alongwith the duty paying documents. That no investigation has been done also at the end of re-rolling units to unearth whether they have received M.S. Plates. That Appellants asked for cross-examination of all the third party witnesses, whose statements are relied u .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Breaking Co. and Shri Ramesh Agarwal of M/s Hoogly Ship Breakers to argue his case. He also relied upon the following case laws to argue that no case can be made out against the Appellants as no investigation has taken place at the end of recipients of clandestinely diverted inputs i.e. M.S. Patel Steel Industries & Rolling Mills or M/s Panchtantra:- a) Monarch Metals P. Ltd Vs CCE Ahmedabad [2010 (261) ELT 508 (Tri-Ahmd)] b) CCE Ludhiana Vs Parmatma Singh Jatinder Singh Alloys Pvt.Ltd. [201 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

transporters, angadias and diaries without giving cross-examination:- a) CCE Coimbatore Vs Rajguru Spinning Mills [2009 (243) ELT 28 (Tri-Che.)] b) Rhino Rubbers Pvt.Ltd. Vs CCE Bangalore [1996 (85) ELT 260 (Tribunal)] c) CBI Vs V.C. Shukla [AIR 1998 SC (1406)] d) TGL Poshak Corporation Vs CCE Hyderabad [2002 (140) ELT 187 (Tri-Che.)] e) Emmtex Synthetics Ltd Vs CCE New Delhi [2002 (147) ELT 649 (Tri-Del)] f) CCE Chandigarh Vs Neepaz Steel Ltd [2008 (230) ELT 218 (P&H)] 3. Shri S. Shukla (A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the OIO to drive home the point that principles of natural justice were not violated in view of Apex Courts decision in Surjeet Singh Chhabra Vs Govt. of India [1997 (89) ELT 646 (SC)]. Learned AR also made the Bench go through Para 34 of the OIO dt.27.06.2014/01.07.2014 to argue that accounts maintained in the diary had complex codes which were decodified by Shri Manish Patel, Accountant of the Broker who was maintaining the said diary. Learned AR also made the Bench go through Para 16 of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

CENVAT Credit on the basis of proper CENVAT taking documents when the First Appellate Authority has held that only documents were obtained by the main Appellant and no inputs were accompanied by these documents. For establishing the case, Revenue has recorded the statements of supplier, ship breaker, broker and his employees, transporters and angadias to the effect that only documents were sold to the Appellant and M.S. Scrap which was in the form of M.S. Plates was sold in cash to certain re-ro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sold to rolling mills and only documents were sent to the Appellants. Shri Satyapal W. Singhal has denied to have sold such goods to the rolling units. Similarly, two other shipbreaking units M/s P. Patel Ship Breakers Co. & M/s Hoogly Ship Breakers have not confirmed that only documents were sent to the Appellants. No statements of the rolling mills, whose names cropped up during the investigation, were recorded to confirm that M.S. Plates were received by them. No evidence was brought to t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r. 4.1 Investigation undertaken by the Revenue no doubt raise a strong presumption on the basis of recorded statements and diary that Appellant may be indulging in some clandestine activity. Manufacturers of M.S. Ingots and rolling products are known to be dealing with commodities prone to evasion but the same notion cannot be the basis to fix all such units on the basis of presumption. In the present case, the entire emphasis is on the statements of third parties to establish the case. Appellan .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s [2014 (300) ELT 119 (Tri-Mum)] to hold that cross-examination of witnesses was correctly denied by the Adjudicating authority. 4.2 It is observed from Para 9 of this case law, quoted by the First Appellate Authority in Para 16 of the OIA that in the case before CESTAT there were evidences of unaccounted production, purchase of raw materials, statements of the 16 purchasers of finished goods, statements of scrap dealers who supplied scrap in cash etc. After considering such corroborative eviden .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt is used against the assessee, an opportunity of cross-examining the persons who made those statements ought to be given to the assessee. This is clear from the observations contained in Swadeshi Polytex Ltd. (supra) and Laxman Exports Limited (supra). Apart from this, the decision of this court in J&K Cigarettes Ltd. (supra) clinches the issue in favour of the appellant. In that case, the validity of Section 9D of the Central Excise Act, 1944 was in question. .... 14. The Division Bench a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to cross-examine the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ility of a person in the absence of independent evidence of their trust worthiness. Honble Supreme Court under this case law made following observations in Paras 36 to 39 of the judgment:- 36. The same question came up for consideration before different High Courts on a number of occasions but to eschew prolixity we would confine our attention to some of the judgments on which Mr.Sibal relied. In Yesuvadiyan v. SubbaNaicker, AIR 1919 Madras 132 one of the learned Judges constituting the Bench h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dence that the entries represent real and honest transactions and that the moneys were paid in accordance with those entries. The legislature however does not require any particular form or kind of evidence in addition to entries in books of account, and I take it that any relevant facts which can be treated as evidence within the meaning of the Evidence Act would be sufficient corroboration of the evidence furnished by entries in books of account if true. While concurring with the above observa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In HiraLal v. Ram Rakha, AIR 1953 Pepsu 113 the High Court, while negativing a contention that it ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dence to charge any person with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts. 38. The evidentiary value of entries relevant under Section 34 was also considered in HiralalMahabirPershad, (ILR 1967 1 Punj 435) (supra) I. D. Dua, J. (as he then was) speaking for the Court .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the formers' correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version