TMI Blog2015 (3) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate, for the Assessee. Shri A.K. Dhawan, DR, for the Department. ORDER The appellant M/s. Sharad Electronics is in appeal against the impugned order demanding the duty along with interest by denying the Cenvat credit on inputs and imposition of penalties. All other co-appellants are in appeals against the imposition of penalties thereon. 2. As issue involved is common, therefore, all the appeals are taken up together for disposal. 3. The brief facts of the case are that the cases of fraudulent availment of Cenvat credit were booked by the department against the manufacturer buyer of PVC Resin of M/s. Jagruti Resin Pvt. Ltd. and M/s. Shree Sai International, the first stage/second stage dealer. Therefore, investigation was conducted at the premises of M/s. Jagruti Resin Pvt. Ltd. and certain statements were recorded. Statements of some of the transporters were also recorded and it was concluded that as the transport vehicle are not having the capacity to transport the goods in question, therefore, the manufacturer buyer have not physically received the goods and there is only paper transaction. Consequently, Cenvat credit cannot be availed by manufacturer buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a paper transaction. Consequently, Cenvat credit is not available. To support these allegations the Revenue has recorded the statement of some of the transporters and on the basis of those statements of the transporters it has been concluded that the goods have not been transported. Therefore, the analysis of the statements along with allegations is required to be considered by this Tribunal and same are dealt with herein as under : (i) There was a vehicle No. HR/55/0076 involved in transporting the goods and statement of the owner of the vehicle was recorded wherein he has stated that the laden capacity of the vehicle is 2.5 MT to 3 MT and they are loading sometimes upto 4 MT. It was also stated by the transporters that vehicles are driven by the drivers and they are not issuing LR/GR for transportation of the goods as the goods are being transported locally by the vehicle. The statement was initially recorded, the owner of the vehicle stated they are not maintaining any record. After recording the statement initially, on 10-6-2009 it was stated by the transporter that driver was maintaining a diary to transport the goods date wise and also recording the name of the persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Himachal Pradesh. Therefore, vehicle cannot transport the goods of the appellant. On analyzing the various statement recorded in this case with regard to this vehicle, I find that this vehicle was sold in January 2007 to a person who was based in Himachal Pradesh and the statement of Shri Rajendra Rana was recorded on 5-2-2010 who acquired the vehicle from Shri Balbir Goel on 10-7-2007. No statement of Shri Balbir Goel was recorded to bring out the truth whether the goods have been transported by Shri Balbir Goel or not. Therefore, the burden lies on the Revenue to ascertain the truth by recording the statement of Shri Balbir Goel whether he has transported the goods of the appellants or not. No such exercise has been done and merely on the basis of statement of Shri Rajendra Rana, it has been concluded that goods have not been transported without any documentary evidence. Therefore, the charge of non-transportation of the goods by vehicle No. HR/55/5278 is not proved and the allegation is set aside. (iii) Another vehicle involved is HR/55/H/7767 which is having a registered laden capacity of 3.5 MT wherein the statement of the owner of the vehicle Shri Jile Singh was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon, the same also support the case of the appellant. Moreover, at the time of involvement of the vehicle in transportation of the goods, Shri Kishan Kumar was not the owner of the vehicle. Therefore, his statement cannot be relied upon and no statement of Shri Rakesh Kumar who was the owner of the vehicle during the impugned period was recorded. Therefore, the allegation for non transportation of the goods by this vehicle is not supported by any corroborative evidence. Accordingly the charge of non transportation of the goods by this vehicle is not sustainable. (vi) Another vehicle was used in transportation of goods is HR/38/F/3612. The statement of the owner is that vehicle were driven by the drivers and this vehicle has never transported the goods of the appellant. I have seen that vehicle was not driven by the owner of the vehicle and statements of driver has not been recorded. The transportation took place in 2006 and the statement was recorded in November 2010. It might not be in the memory of the person making the statement when he was not driving the vehicle with regard to transporting of goods. Moreover, the transporter was not maintaining the record of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and whole of the goods cannot be transported at the same time. I have seen that it is a usual trade practice that dealer issues several invoices at the same time for the goods to be transported in whole of the day by a particular vehicle in several rounds. Moreover, no GR has been issued by the transporter nor any statement of the transporter has been recorded to allege that vehicle was not involved in transportation of goods. Therefore, the charge of non transportation of the goods by this vehicle is not sustainable in the absence of any corroborative evidence. (x) Another vehicle was used in transportation of goods is HR/55/5839. The charge is that this vehicle cannot transport the goods beyond registered capacity which is 4200 kgs and the invoices to transport the goods is of 7000 kgs and 15000 kgs. In this case, no statement of the transporter have been recorded and in the registration certificate vehicle is shown as HTV which means Heavy Transport Vehicle. The capacity of 4200 kgs can t be the capacity of Heavy Transport Vehicle. Therefore, the charge that vehicle was not used in transportation of goods is not sustainable without any corroborative evidence and merely on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore the allegation is not sustainable. (xv) Another vehicle was used in transportation of goods is HR/55/B/2454. As the vehicle is registered in the name of Deputy Commandant BSF and vehicle held by SHQ BSF Bandipur, Kashmir and same can be used by security related duties in and around Bandipur. Therefore, it is alleged that vehicle was not used for the transportation of the goods. In this case, no statement of SHQ Bandipur was recorded and the officers in Delhi are not competent to make the statement that vehicle was not in their control. Without recording the statements of the drivers who was holding charge of the vehicle during the relevant time, the allegation is not sustainable. Moreover, only one instance is involved therein. There may be an error for recording the correct vehicle No. and it may be a possibility that the driver might have taken the vehicle to their office at Manesar and vehicle might have been used in transportation of the goods. But all these are assumptions and presumptions, but on the basis of assumption and presumption, it cannot be alleged the vehicle was not used in transportation of goods. The allegation on the basis of assumption and pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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