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2015 (10) TMI 1358 - CESTAT NEW DELHI

2015 (10) TMI 1358 - CESTAT NEW DELHI - 2015 (329) E.L.T. 556 (Tri. - Del.) - Denial of CENVAT Credit - Bogus invoices - Non receipt of physical goods - Held that:- Assessee is required to find out while taking Cenvat Credit to ensure that the input on which Cenvat Credit is taken, the relevant document is accompanied by them or not. Admittedly, in this case the appellant is able to produce the invoice against which appellant has availed Cenvat Credit and same has been entered in their RG-23 Reg .....

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as produced invoice on the strength of which they have availed Cenvat Credit and the goods have been entered in their RG-23 register and same has been supported by the weightment slips which were produced by the appellant before the authorities below. When these material evidence are on record then the burden of not receiving the goods by the appellant shifts on the revenue which revenue failed to do so. - charge against the appellant that they have not received goods and it was only the paper t .....

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it on paper transactions and has not physically received the goods. 2. The facts of the case are that the investigation was conducted on one M/s. Jai Kara Steel Rolling Mills, Mandi, Govindgarh on 28.02.2005 and the gate keeper of the said factory submitted that the factory is closed from last one year and factory started working about 4-5 months back and 9-10 workers are working in the factory, only 2-4 machines are in working conditions and there is no stock of finished goods as well as raw ma .....

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cause notice was issued to the appellant as well as M/s. Jyoti Steels which was adjudicated and availment of Cenvat Credit on the invoices issued by M/s. Jyoti Steels was denied. Consequently, duty is demanded along with interest and penalty is also imposed on the appellant. Therefore, appellant is before me. 3. Shri Kamaljeet Singh ld. Advocate for the appellant appeared before me and submits that appellant is a manufacturer buyer of the impugned goods and they have received goods from M/s. Jyo .....

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onducting investigation at the end of transporter and manufacturer supplier or physical verification of the stock. The demand is not sustainable. To support this contentions he relied on the decision of Telson Mill final order no. 976/2012 SMV dated 17.07.2012 which has been confirmed by the Hon'ble P&H High Court reported in 2015 (315) ELT 415 P&H. Shri Juhi Alloys Vs. C.C.E. 2013 (296) ELT 533 (Tri-Del) upheld by Hon'ble High Court of Allahabad vide order No. 21/2014 dated 15.0 .....

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ental officer during the course of the investigation itself. Therefore, burden casts on the appellant to prove that they have received goods physically in their factory which they failed to do so without any tangible evidence. He also relied on the statement of M/s. Jyoti Steels, an authorized representative of the appellant. To support his contention he relied on the decision in the case of Neelkanth Steel Agro Industries Final order no. A/54432/2014-SM(BR) dated 29.10.2014 and Sidh Industries .....

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on the basis of the statement of proprietor of M/s. Jyoti Steels and authorized representative of appellant that appellant has procured invoice not physically any goods. Therefore, Cenvat Credit was denied. In this case, I find that the manufacturer supplier of the goods is not M/s. Jai Kara Steel Rolling mills at all. No investigation has been conducted by the Revenue at the end of manufacturer supplier against whose invoices the appellant has taken Cenvat Credit. No Investigation was conducte .....

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the department itself. The department cannot allege that dealer is non existent unless and until registration is cancelled. 7. As per Rule 9 (3) of the Cenvat Credit Rules 2002 which deals with the availment of Cenvat Credit by the assessee and same is reproduced here as under: "(3) The manufacturer or producer of excisable goods or provider of output service taking CENVAT credit on input or capital goods or input service, or the input service distributor distributing CENVAT credit on inpu .....

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ice distributor distributing CENVAT credit on input service on the basis of, invoice, bill or, as the case may be, challan received by him for distribution of input service credit shall be deemed to have taken reasonable steps if he satisfies himself about the identity and address of the manufacturer or supplier or provider of input service, as the case may be, issuing the documents specified in sub-rule (1), evidencing the payment of excise duty or the additional duty of customs or service tax, .....

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f input service has paid the service tax, and where the identity and address of the manufacturer or the supplier or the provider of input service is satisfied on the basis of a certificate, the manufacturer or producer or provider of output service taking the CENVAT credit or input service distributor distributing CENVAT credit shall retain such certificate for production before the Central Excise Officer on demand." 8. As per the said rule, the assessee is required to find out while taking .....

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