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TMI Blog2015 (4) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... rocured the goods from M/s. AIP Industries Ludhiana and some proceedings were initiated against M/s. AIP Industries and a show cause notice was issued to M/s. AIP Industries on 18.06.2009 and thereafter adjudication took place. Then investigation was conducted at the end of first stage dealer M/s Jay Shree Enterprises and consequently at the premises of the respondent. After conducting the investigation a show cause notice dated 07.09.2011 was issued to the respondent as well as M/s Jay Shree Enterprises to deny Cenvat Credit on the allegation that M/s. AIP Industries is not having manufacturing facility of the goods in question. Therefore, M/s. AIP Industries have issued cenvitable invoices to avail inadmissible Cenvat Credit by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stage and it was held that M/s. AIP Industries is not having any manufacturing facility. Therefore, revenue has discharged their burden and now the burden lies on the respondent to prove that they have physically received the goods. To support his contention he relied on the decision in the case of Harsaran Dass Sita Ram Vs. CCE Panchkula-2015 (56) taxmann.com 278 (P&H). Therefore, he submits that Cenvat Credit is not available to the respondent without proving with cogent evidence. He further submits that M/s. AIP Industries appeal has been dismissed by this Tribunal for non compliance of the provision under section 35F of Central Excise Act 1984. He further submits that for appeals against Mr. Satish Garg and M/s Jay Shree Enterprises h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent has not been proved and allowed the Cenvat Credit. Therefore, the impugned order is to be upheld and the case laws relied upon by the Revenue is not applicable to the facts of this case. 6. Heard the parties. Considered the submission. 7. The main allegation of the Revenue is that as M/s. AIP Industries is not having manufacture facility, therefore, Cenvat Credit is not available to the Respondent. To support his contention Ld. AR heavily relied on the decision in the case of Harsaran Dass Sita Ram (Supra). In the said case in earlier round of proceedings after examining the facts of the case this Tribunal came to the conclusion that assessee who is availing Cenvat Credit has to prove that they have received the goods. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements of bank accounts to substantiate their claim that they have received the goods from appellant no.2. All these were verifiable facts. The department has not conducted any investigation whatsoever on the factual statements made by the appellant no.1. They have not been commented upon in the order-in-original neither there is any rebuttal. Therefore, the existences of these documents and the transaction conducted under them have to be accepted. Thus, it cannot be said that the appellant no.1 did not received any goods from appellant no.2. Further, the show cause notice has alleged fraud and invoked extended period for demand. In the entire proceedings no evidence whatsoever has been brought on record about the fact that appellant nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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