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2015 (4) TMI 1036 - CESTAT NEW DELHI

2015 (4) TMI 1036 - CESTAT NEW DELHI - TMI - Denial of CENVAT Credit - Issue of invoices without actual receipt of goods - Held that:- as the respondent has made all the payments through account payee cheque to the first stage dealer who has accepted that they have delivered the goods along with invoices. Moreover, no statement of transporter have been recorded to ascertain the fact that respondent has not received the goods. In these circumstances, I do not find any infirmity with the impugned .....

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espondent : Shri K.K. Gupta, Advocate ORDER Per Ashok Jindal: The Revenue is in appeal against the order wherein the Ld. Commissioner (A) has set aside the order of adjudication denying Cenvat Credit to the respondent. 2. The facts of the case are that the respondent procured goods during the period 11.08.2006 - 20.09.2006 from M/s Jay Shree Enterprises, first stage dealer who ultimately procured the goods from M/s. AIP Industries Ludhiana and some proceedings were initiated against M/s. AIP Ind .....

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ity of the goods in question. Therefore, M/s. AIP Industries have issued cenvitable invoices to avail inadmissible Cenvat Credit by the respondent without delivering the goods. Both the parties namely respondent and M/s Jay Shree Enterprises contested the issue before the Adjudicating Authority saying that we have physically received the goods and all the payments have been made through account payee cheque. No investigation has been conducted with the transporter of the goods. Therefore, it can .....

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respondent for availing inadmissible Cenvat Credit on the premises of the invoices issued by M/s. AIP Industries. He also dropped the penalties against Shri Satish Garg, Director and M/s Jay Shree Enterprises. The revenue has not challenged order qua Shri Satish Garg and M/s Jay Shree Enterprises is before me. Revenue is in appeal only against the respondent before me. 4. The Ld. AR submits that in this case M/s. AIP Industries is not having the facility of manufacturing of impugned goods. There .....

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.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 he wants to seek report from the concerned department whether they have filed the appeal or not. 5. On the .....

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they have supplied the goods to the respondent and payment to M/s Jay Shree Enterprises has been made by the respondent through A/c payee cheque only. Moreover, mode of transportation have been mentioned in the invoice. No investigation has been done by the revenue to allege the respondent has not received the goods from M/s Jay Shree Enterprises. As per Rule 9 of Cenvat Credit Rules 2004 the assessee is required to see the name of the manufacturer supplier duty being paid on the goods and same .....

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ld 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 .....

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fact, facts of this case are somewhat different as in the impugned order itself Ld. Commissioner (A) has come to the conclusion that respondent has been able to prove that they have received the goods in their premises. Therefore, the said facts are not applicable to the facts of this case. Further, I have examined the impugned order and in the impugned order Ld. Commissioner (A) has observed as under: As regrds, appellant no.1 the representative of the appellant during the investigation categor .....

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the transporter, sales tax / vat returns, assessment order from the sales tax department, copies of declaration inform-H and the statements 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 exist .....

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