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2015 (11) TMI 1037 - CESTAT MUMBAI

2015 (11) TMI 1037 - CESTAT MUMBAI - TMI - Denial of CENVAT Credit - Bogus invoices - Non receipt of physical goods - whether the appellant-manufacturer have availed CENVAT credit on inputs without actually receiving the inputs - Held that:- Demands have arisen as a result of investigation carried out by the officers at residential premises of Shri Kirti Kala and other employees, director of M/s SOL Shri Mukesh Sangla, office and godown of M/s SOL and its associate concerns. The hand written sli .....

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and Paras Patidar, Marketing Manager of M/s SOL. The officers also investigated one of the transporter Shree Ganesh Transport who had transported goods from Mumbai godown of M/s SOL to M/s TEL but the same was found to be non existing.

Neither the statement of Shri Ravindra Pingle, the godown Incharge nor the statement of Shri Paras Patidar points out any modus operandi in respect of M/s TEL having been issued duty paid invoices by M/s SOL, without actual delivery of goods. M/s TEL h .....

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ted elsewhere. In case of goods received from M/s DCW, there is no investigation as to whether the goods were diverted elsewhere and not received by M/s TEL. The investigation is silent upon all these issues. Further it is not appearing on record that if the goods were not received by the Units of M/s TEL in that case what was the alternate source from where M/s TEL procured the goods. When the goods (inputs) were found to have been entered in records of M/s TEL and were shown to have been consu .....

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ri B.B. Kadam, Advocate For the Respondent : Shri Rakesh Goyal, Addl. Commr. (A.R.) ORDER Per: Anil Choudhary: The appellants (i) M/s Tulsi Extrusions Ltd -Unit No. 1 is the appellant in appeal number E/86761/13 and (ii) Tulsi extrusions Ltd - Unit No.2 (TEL) is the appellant in appeal No. E/86760/13, have preferred the present appeals against Order-in-Appeal No. RPS/17-19/NSK/2013 dated 21.01.2013 and RPS/20-22/NSK/2013 dated 21.01.2013 respectively. The appellant Shri Mukesh Sangla has filed a .....

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M/s Tulsi Extrusions Ltd. (Unit No.- I) and Tulsi Extrusions Ltd. (Unit No. II) commonly known as TEL are engaged in the manufacture of PVC Pipes, fittings. They are availing CENVAT credit of inputs used in manufacture of their finished goods. Shri Khiwanmal Lohiya is Authorised Signatory of both the Units. Shri Mukesh Sangla is director of M/s Signet Overseas Ltd. (SOL) which is a registered dealer of different Plastic Polymer manufacturing companies and is supplying goods to M/s TEL. 3. M/s T .....

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eized various documents, unaccounted currency valued to ₹ 35 lakhs from residential premises of Shri Mukesh Sangla, three lap-top computers and several hand written slips at residential premises of Shri Kirti Maheshchandra Kala. Also records and documents were seized from residence of Shri Ravindra Pingle and Shri Paras Patidar. 4. It is further relevant to state that M/s.SOL had obtained registration from Central Excise Department for its depots at Indore, Daman and Mumbai. The managing d .....

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h collection and disbursements personally done by him at the instructions of Shri Mukesh Sangla. Shri Mukesh Sangla in his statement dated 06.12.2007 stated that M/s SOL had been purchasing plastic polymers from different manufacturing companies. That M/s. SOL is registered as a 'first stage dealer' with the Central Excise Department and had been selling these polymers to various industrial users. That cash transactions in aforementioned handwritten papers denote cash receipts and cash p .....

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ng the amount in cash. It was alleged by Revenue that the documents seized from the residence of Shri Pingle contained evidences regarding procurement of duty paid inputs and buyers to whom the duty paid inputs were actually sold. These documents indicated that M/s. SOL and its other associates had sold the duty paid polymers to different buyers without issuing any invoice. 5. It is further alleged in the show-cause notice, That scrutiny of ledgers on laptop of Sri Kala in respect of transaction .....

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d 26.02.2009 stated that the amount deposited in bank account of M/s TEL has got nothing to do with the transaction of M/s Signet Overseas as it was amount of M/s TEL only and M/s SOL has just provided assistance to M/s TEL in depositing such amount in their accounts. It was contended in show-cause notice that one of the files seized from office premises of Shri Mukesh Sangla contained a letter written by Shri Dilip Shirke of M/s SOL, Pune to M/s TEL, Jalgaon wherein he had informed M/s TEL that .....

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of M/s TEL. That as per his knowledge the said amount has got no connection with business transaction between M/s SOL and M/s TEL., he had provided only assistance and that he does not know Shri Lohiya of M/s TEL. 6. The show-cause notices were issued on the basis of documents seized and statements of employees related to M/s SOL, buyers of some of the polymers in cash and documents seized from various places and premises. It was alleged that the transactions on Shri Kirti Kalas laptop indicate .....

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ll such customers to whom bogus invoice has been issued, as admitted by Shri Paras Patidar, Marketing Manager of M/s SOL. That although in case of TEL, all the transportation of polymers have been shown from Mumbai, it is on record that M/s SOL has been issuing bogus invoices to their customers for enabling them to avail CENVAT credit on such bogus invoices. From scrutiny of records seized from both the units of M/s TEL it appeared that the credit was availed on the basis of invoices of polymers .....

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d that no such transport company ever functioned or even existed at the given address. Summons were also issued to Shri Khiwanmal Lohiya, authorized signatory of M/s TEL who refused to comment upon the ledger entries appearing in laptop of Shri Kirti Kala in respect of M/s TEL and stated that all the material/inputs on which credit has been availed by them were received in their factory. Shri Lohiya during his statement dated 21.04.2009 produced the bank statement and freight ledger showing frei .....

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maintained by Shri Kirti Kala in his laptop. The show-cause notice further alleged that M/s TEL has availed credit of duty paid on invoices issued by M/s SOL, whereas no goods were actually consigned by M/s SOL to M/s TEL. 7. dated 24.11.2009 wherein demand of Cenvat of ₹ 49,85,889/-(on unit No. 1) and ₹ 22,55,284/-(unit No.II) was proposed against them in terms of Rule 14 of the CCR, 2004 read with Section 11A of the Central Excise Act. 1944. It was also proposed to impose penalty u .....

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They also requested to grant cross examination of some other persons/purchasers of goods from M/s SOL in cash as well as persons whose statements were relied upon in the show-cause notice. The appellant- M/s TEL pleaded that even from the statement of employees of M/s SOL and Shri Mukesh Sangla, it nowhere appears that the allegation made against them are correct, rather the statements are self contradictory. The request for cross examination was denied without any cogent reason. The appellant r .....

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iven by Mr. R. Pingle being contradicted on the facts, hence it was necessary to verify the validity of the statement by way of cross examination. Attention was drawn to the statement of Mr. Sangla recorded on 26/2/09 wherein in answer to question number 23, it was stated that the cash transactions with respect to TEL are in respect of assistance and have no connection with the purchase transactions between them. Further reliance was placed on the statement of Mr. Dilip Shirke (employee of SOL) .....

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d further stated that such transactions can be explained only by the Dir Mr. Mukesh Sangla. Thus the statement of Mr. Kala is unreliable in absence of cross examination. It was further urged that the show-cause notice covers invoices where the goods have been transported by Ganesh Transport Company, in spite of the fact that different transporters were engaged for transport of inputs consigned by SOL to the appellant-TEL. Further the appellant have been purchasing raw materials from SOL since 20 .....

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sider the input-output norms applicable to the products of the appellant. No verification of physical stock have been done. Further no reconciliation have been attempted by the investigation as regards the alleged cash deposit with respect to cheques issued by TEL. Further total quantity of resin comes to 7,09,000 kg, allegedly purchased against bogus invoices. That there is no allegation as to bogus clearance of the inputs, as such, and/or any error in the production records. Further the explan .....

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provides that for the manufacture of one KG of rigid PVC pipe, PVC resin required is 0.966 KG. As per the certificate of cost accountant the consumption of appellant for the production of one KG pipe is 0.94 to 0.98 KG resin. The appellant Shri Mukesh Sangla also filed reply to the show-cause notice stating therein that they've actually supplied the inputs (resin) to the appellantTEL. Further substantial quantity of resin was dispatched directly to TEL from DCW, the payment of which was coll .....

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appellant TEL have received only the invoices without the corresponding goods. 9. The adjudicating authority after declining the request for cross examination, proceeded with the adjudication proceedings, and vide Order-in-Original Nos. 83/Addl./Adj/2010 dated 31.12.2010 and 84/Addl./Adj/2010 dated 31.12.2010 confirmed the proposed demand with equal amount of penalty under Section 11AC of the Act read with Rule 15 of CCR's along with interest under Section 11AB against M/s TEL (Unit No. 1) .....

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missioner (Appeals) after ordering pre-deposit of ₹ 5 lakhs by the appellant-manufacturer. 11. The Commissioner (Appeals) pursuant to remand, vide Order-in-Appeal No. RPS/17-19/NSK/2013 dated 21.01.2013 and RPS/20-22/NSK/2013 dated 21.01.2013 rejected the appeal of manufacturer-TEL and modified the adjudication orders to the extent that in case of appeal against Order-in-Original No. 84/Addl./Adj./2010 dated 31.03.2011 the penalty upon Shri Lohiya and Shri Mukesh Sangla was set aside where .....

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dentiary value. That the ledger maintained in the laptop computer of Shri Kirti Kala was not made in the ordinary course of business and hence not reliable. (ii) That there is no admission of return of cash either by Shri Mukesh Sangla or Shri Lohiya from M/s SOL to M/s TEL, against the invoices issued by M/s SOL as may be seen from their statements. That even Shri Kirti Kala did not state that he has disbursed any cash to M/s TEL. (iii) That the computer printouts of laptop cannot be relied upo .....

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ved was deposited in their bank accounts and hence the same cannot be said to have been received from M/s SOL. The cross examination was necessary to prove that the cash deposited in bank account originated from M/s SOL. He also submits that the cross examination was necessary as all the evidences and statements relied upon were of third party. He relies upon the judgment in Basudev Garg Vs. CCU 2013 (294) ELT 353 (DEL) and Charminar Bottling Co. Pvt. Ltd. Vs. CCE 2005 (192) ELT 1057. (v) That t .....

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of goods. That even Mr. Dilip Shirke, employee of M/s SOL has stated that the amount which was deposited in bank account of M/s TEL, belonged to M/s TEL and he had only assisted in deposit. (vi) That the money deposited in bank account of M/s TEL was collected by the employees of M/s TEL from the Farmers/Dealers and the same was apparent from the ledger of M/s TEL. The lower authorities have not found the contention untrue. The Ld. Commissioner (Appeals) ought to have appreciated that cross exa .....

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. (vii) That the demand has been confirmed only on the ground that the office of Shree Ganesh Transport one of the transporter who had transported goods from Mumbai Depot of M/s SOL to M/s TEL was not found. However the same cannot be the basis for confirming demand, as the registration numbers of vehicles were available on record, which was not investigated. The investigating officers did not verify the fact from the owners/ truck drivers of such vehicles. Hence demand is erroneous. (viii) That .....

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or recognize any person of the appellant to whom allegedly cash was given and such cash transactions can only be explained by Mr. Mukesh Sangla. That it has to be appreciated that the huge amount of cash given to the extent of ₹ 3.8 crores to some person, whose identity is not recognized by the Accountant of M/s. SOL, is absolutely unbelievable. (x) That no discrepancy was found in the statutory and excise records of M/s TEL which conclusively proves that the goods were received and consu .....

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eponderance of probabilities and the Revenue has to prove the same beyond doubt. (xii) The Ld. Counsel further relies upon the judgment of this Tribunal in case of CCE Vs. Peejay Int. 2010 (255) ELT 418 (TRI - DEL), CCE Vs. Shakti Roll Cold Strip 2008 (229) ELT 661, Arvind Enterprises Vs. CCE, Delhi 2013 (296) ELT 253, Monarch Metal Vs. CCE, Ahmedabad 2010 (261) ELT 508, CCE Vs. Parmatma Singh 2011 (266) ELT 67 to enforce his submission. 14. The Ld. A.R. while arguing for the Revenue places reli .....

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ceipts against cheques received on account of invoices issued without any corresponding goods. That he also accepted that in some cases of sales, M/s SOL issued cenvatable invoices without delivery of goods and that the cash receipts are not reflected in their accounts. That the persons connected with M/s SOL also accepted having arranged bogus transport documents and LRS. That Mr. Dilip Shirke, Marketing Officer, SOL who admitted to depositing cash of ₹ 23,50,000/- in bank account of TEL, .....

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no transportation of goods. The Ld. A.R. also relies upon the judgment in Collector of Customs, Madras and Others Vs. D. Bhoormull 1983 (13) E.L.T. 1546 (S.C.). He says that the cross examination of employees of M/s SOL and other persons are not necessary. He relies upon the judgment of Shalini Steels Pvt. Ltd. Vs. CCU & C. EX., Hyderabad 2011 (269) E.L.T. 485 (A.P.), Ahmednagar Rolling Mills Pvt. Ltd. Vs. CCE., Aurangabad 2014 (300) E.L.T. 119 (Tri. - Mumbai), Fortune Impex Vs. CCU, Calcutt .....

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ported cash transactions by M/s SOL. Shri Kirti Kala and Shri Mukesh Sangla stated that the entries pertains to cash received on account of sale of polymers without issue of invoices and cash payments which included the payments made in lieu of cheques to the parties who purchased bogus invoices without delivery of goods. Reliance has also been placed upon the statement of Ravindra Pingle the godown Incharge at Indore and Paras Patidar, Marketing Manager of M/s SOL. The officers also investigate .....

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es in the laptop pertain to sale of polymers and receipt of cash against bogus invoices. However I find that in his statement dated 18.02.2009 Shri Kiti Kala stated to have knowledge about the cash details appearing in his laptop but in respect of M/s TEL he stated that only Shri Mukesh Sangla can explain such entries. Shri Mukesh Sangla in his statement dated 26.02.2009 has stated that the cash amount deposited in bank accounts of M/s TEL has got no connection with M/s SOL, as the same pertain .....

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as Patidar points out any modus operandi in respect of M/s TEL having been issued duty paid invoices by M/s SOL, without actual delivery of goods. M/s TEL had produced the documents towards deposit of cash showing the receipt of the same from buyers/dealers of finished goods. These documents remained undisputed, as not found untrue, by the adjudicating authority, which shows that the contention made by M/s TEL is correct. 15.3 I find that M/s TEL had sought cross examination of the employees of .....

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Kirti Kala which was not the regular record maintained in ordinary course of business by M/s SOL, there are no other evidence to support the allegation of the revenue. Being third party record and that too not the regular records, M/s TEL had right to determine and test the veracity of such entries by cross examining the persons who maintained the records and whose statements were recorded, which led to the implication of M/s TEL. The cross examination was much necessary in the facts of the case .....

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3 (Del.) and Tribunal judgment in case of Charminar Bottling Co. Pvt. Ltd. Vs. CCE 2005 (192) ELT 1057. It is held that, by denial of cross examination, opportunity of hearing is denied. Thus the findings of the courts below are vitiated. 15.4 Further the investigation were mainly conducted at Indore and except visit to place of transporter - Shri Ganesh Transport, no investigation has been conducted at Mumbai godown of M/s SOL from where the invoices were issued to M/s TEL. Some consignments we .....

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ther it is not appearing on record that if the goods were not received by the Units of M/s TEL in that case what was the alternate source from where M/s TEL procured the goods. When the goods (inputs) were found to have been entered in records of M/s TEL and were shown to have been consumed in the production, which remains undisputed, I hold that looking to all these aspects the demand is not sustainable. 15.5 The Cenvat demand is also based on the premise that the transporter - Shri Ganesh Tran .....

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hri Lohiya had produced the relevant record i.e freight ledger showing payment of freight to the transporter and other records showing the receipt of goods which is not disputed. I accept the contention of the appellants and I hold that Cenvat demand cannot be made on the ground that the transporter was found to be non existent, at the later stage of investigation. 15.6 The Revenue has relied upon the documentary evidences seized from residential premises of the employees of M s. SOL, data retri .....

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ements which doubted the authenticity of the said records. There is no evidence on record which proves that M/s TEL had not maintained proper account of receipt, and consumption of raw materials and manufacture & clearance of finished goods. The transport Bilties (LRs) and transport slips showing the receipt of goods at factory of M/s TEL is on record. There is no positive evidence that any goods/raw material were diverted elsewhere. The findings in the impugned order are contrary to the fac .....

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Pillai V.P. Marketing (Yarn), Shri Waman B. Wankhade, Clerk of M/s. New Golden Transport Co. and Shri Ashok Kumar, Accountant of M/s. Bhawana/Ashish Enterprises, Ludhiana make reference to documents like LRs with specific numbers and dates, GRs with specific numbers and dates, and the facts like dispatch of inputs in the name of the respondents, delivery thereof and receipt by M/s. Ashish Enterprises or M/s. Bhawana Enterprises, transportation of inputs from the manufacturer to those dealers of .....

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sort inspite of the fact that some of the final products revealed absence of PFY element therein, nor the records disclosed any discrepancy which could reveal and/or co-relate to the inputs allegedly diverted to other parties. In fact, as rightly observed by the Commissioner, there appears to be no attempt made at any point of time in the course of investigation to establish such co-relation between the inputs alleged to have been diverted and the final product which was found without the presen .....

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. 14. Merely because the numbers and dates of LRs and GRs in the statement of the representatives of the manufacturer of the inputs and the representative of the dealers as well as of the transporters from the manufacturer of inputs to the dealers tally, that by itself, will not be a conclusive and satisfactory evidence about diversion of the inputs by the respondent in the open market, in the facts and circumstances of the case. It is not in dispute that the dealers as well as the respondents b .....

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utilization thereof in the manufacture of the final product by the respondent, we fail to understand as to how the demand in relation to the amount over and above ₹ 44,09,228/- can be sustained. 15.7 Further in case of B.M.A. Zinc Pvt. Ltd. Vs. Commissioner of Central Excise, Jaipur 2005 (191) E.L.T. 792 (Tri. - Del.), the Tribunal held that We have considered the submissions of both the sides. The factual position which emerges from the records is that the Appellants had taken Modvat cred .....

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ed copper ingots, that too on payment of duty of more than ₹ 2 lakhs than the amount of credit availed by them. This aspect of the matter has not been considered at all. In view of the fact that the Appellants have shown clearance of copper ingots and paid duty goes to show that they have received the scrap and used the same in the manufacture of copper ingots. We, therefore, set aside the order and allow the Appeal. 15.8 In case of Hiren Aluminium Ltd. Vs. CCE, Valsad 2009 (245) E.L.T. 38 .....

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was used in the final product and that in how many final products such inputs could have been used, altogether create a doubt as to the correctness of the contents of the statements. The preponderance of probabilities in the context of all other evidences vis-a-vis the confessional statements do not lead to the conclusion of inadmissibility of Modvat/Cenvat credit, as reached by the Commissioner. In the present case also, as we have already discussed, the entire case of the Revenue is based onl .....

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ame cannot be held to be fake and non-receipt of inputs under the cover of the same cannot be upheld. Further, we find that the Tribunal in the case of CCE, Chandigarh v. Shakti Roll Cold Strips Pvt. Ltd. [2007 (80) RLT 267 (CESTAT-Del.), by taking note of the earlier decisions of the Tribunal, has held that the credit cannot be denied only on the ground that vehicle numbers given in the invoices were not of the trucks, when payment for goods was made by cheque/draft and inputs were used in the .....

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[2008 (87) RLT 630 (CESTAT-Del.)], it was held that merely because vehicle numbers mentioned in some of the invoices are not of transport vehicles, the same is not sufficient to deny the credit, when there is evidence of receipt and utilization of inputs and no evidence of diversion is available. 16. The law as declared in the above referred judgment, when applied to the peculiar facts of the present case leads to only one inevitable conclusion that the inputs were actually received by the appe .....

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lar analogy has been adopted by the Tribunal in the case of M/s Motherson Sumi Electric Wires Vs. CCE, Noida 2009 (246) ELT 651 (TRI), CCE, Mumbai Vs. Nimesh Engineering Pvt. Ltd. 2009 (237) ELT 726 (TRI) and Tejwal Dyetuff Ind. Vs. CCE, Ahmedabad 2007 (216) ELT 310. 15.10 In case of CCE, Ludhiana Vs. Parmatma Singh Jatinder Singh Alloys Pvt. Ltd. 2011 (266) E.L.T. 67 (Tri. - Del.), the Tribunal held that- The Revenue has reiterated the same very reasoning adopted by the original adjudicating au .....

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e also entered the said inputs in their RG-23A Part-I records and have shown the consumption of the same for manufacture of the final product. The said plea of the appellant does not stand rebutted by the revenue. If that be so, the allegation as regards diversion cannot be upheld. Once the assessee takes the modvat credit on the inputs, he is under legal obligation to simultaneously enter the inputs in their stock record and to show the utilisation of the same in the manufacture of the final pr .....

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