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Sharad Electronics Versus Commissioner of Central Excise, Delhi-IV

2015 (3) TMI 1159 - CESTAT NEW DELHI

Denial of CENVAT credit - Non receipt of physical goods - Held that:- The only basis to deny the Cenvat credit to the manufacturer buyer is that the vehicles involved were not used in transportation of the goods in question. But Revenue has failed to prove the charge with any corroborative evidence for reliance of the statement of the transporter in question which are analyzed herein above in detail. Therefore, the allegation that vehicles were not used in transportation of goods is not sustaina .....

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15 - Shri Ashok Jindal, Member (J) Ms. Seema Jain, Advocate, 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.&e .....

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le 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 buyers. Therefore, the same was sought to be denied. Consequently, various show cause notices were issued and it was adjudicated and concluded that the manufacturer buyers have not received the goods physically and there were only paper transactions. Consequent .....

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dropping the demand and against M/s. Jagruti Resin Pvt. Ltd., Polyblends India Pvt. Ltd. and Shri Vijay Jain. 4. Shri Seema Jain, Advocate, the ld. Counsel appearing on behalf of the appellants submits that the case has been made out against the appellants only on the basis of statement of some of the transporters. The same is not sustainable and there is no supporting evidence in support of the allegations made by the Revenue. Therefore, Cenvat credit cannot be denied to the manufacturer .....

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be a tourist taxi and in one case it was found to be the truck owned by BSF. Therefore, on the basis of this evidence which corroborate to the allegation made against the appellant, the Cenvat credit is rightly denied. Consequently, demands have been confirmed against the appellant and penalties are also correctly imposed on the appellants. 6. Heard the parties. Considered the submissions. 7. In this case after going through the records placed before me the allegations against the manu .....

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ons 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 good .....

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were never transported by the vehicle. Therefore, it is alleged that the goods were not transported.  I have gone through the statement and analyzed the same. In fact, the transporter has stated that vehicles have been run by the drivers and no statement of the driver has been recorded nor any GR/LR has been issued. Therefore, it cannot be said that the vehicle has not transported the goods merely on the basis of the statement of the owner of the vehicle. Further, the diary was also submit .....

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ether, it is not being transported in one go. Although the vehicle is not able to transport the whole of the quantity in one go but it is the trade practice that the transporter has given the invoice which are issued at the same time and the goods have been handed over to him, the transporter as per his convenience loaded the goods in the vehicle and delivered it to the buyer and in 4 - 5 rounds. This is usual trade practice. Accordingly, the invoices were issued by the dealers for transportatio .....

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he first stage dealer to the manufacturer buyer. In fact the statement of Shri Balbir Goel, owner of the vehicle was recorded on 29-7-2009 where the vehicle was sold by him in the month of January 2007 itself. It is alleged that the vehicle has been registered 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 .....

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ne 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 recorded who stated that he doesn t kn .....

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involved in transporting the goods of the appellant. Therefore, without having corroborative evidence that vehicle was not used in transportation of the goods, the allegation is not sustainable. Consequently, the charge of non usage of these vehicle is not sustainable. (iv) Another vehicle was used in transportation of goods is HR/55/8164. The allegation of non transportation of goods is based on the statement of Shri Rajiv, owner of the vehicle who stated that he has purchased the vehicle .....

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of the appellant transportation is in and aorund Faridabad only. Therefore, on the basis of assumption and presumption it cannot be alleged that vehicle was not used in transportation of the goods. Consequently, charge of non transportation of the goods by this vehicle stands not proved. (v) Another vehicle was used in transportation of goods is HR/55/C/5022. The statement of Shri Kishan Kumar, owner of the vehicle was recorded who stated that vehicle was purchased in January 2005 and sold .....

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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 g .....

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goods. Moreover, the transporter was not maintaining the record of the goods transported by him. Therefore, the statement cannot be conclusive proof of non transportation of the goods, in the absence of any corroborative evidence. Therefore, the allegation for non involvement of this vehicle for transportation of the goods is set aside. (vii) Another vehicle was used in transportation of goods is HR/55/7239. The allegation emerges from the statement of the owner of the vehicle that the vehi .....

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not sustainable. Consequently, the charge of non usage of the vehicle in transportation of goods is not sustainable without corroborative evidence. Accordingly, the same is set aside. (viii) Another vehicle was used in transportation of goods is HR/38/8300. The allegation of non transportation vehicle is based on the statement of Shri Ram Keval of Sanjay Transport Company who claim that his brother is also having a transport company and not maintaining the records. But statement of brother .....

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r which 5 invoices of 4000 kg each were issued by the dealer for transportation of the goods at the same time on the same date for removal. Therefore, it is presumed that at the same time the whole goods cannot be transported.  For this allegation, I find that the actual capacity of the transportation is not ascertainable on the basis of the documents placed on record and the allegation is that five consignments have been issued at the same time and date for removal of the goods and whole o .....

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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 .....

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5000 kgs and invoice shows the quantity is 15000 kgs.  I have seen that for HTV, the capacity of transport of the goods start from 10 MT. Further, I find that the vehicle (HTV) can transport 15000 kgs also and there might be a mistake in the registration certificate showing registered capacity of 5000 kgs for a HTV. Therefore, it cannot be alleged that vehicle has not been used for transportation of goods in the absence of any corroborative evidence. (xii) Another vehicle was used in .....

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is not sustainable. (xiii) Another vehicle was used in transportation of goods is HR/55/B/5507. The only allegation is that vehicle cannot transport over and above the registered capacity. I have seen that registered capacity shown is 3150 kgs. Whereas the invoice shows the quantity of goods as 5000 kgs. But no statement was recorded of the transporter. However, the vehicle is capable to transport the quantity in question. Therefore, in the absence of any corroborative evidence, it cannot .....

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ansporter and without corroborative evidence, it can t be alleged that goods have not been transported. 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. .....

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heir 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 presumption are not sustainable in the absence of any corroborative evidence. Therefore, allegation is set aside. (xvi) Another vehicle was used in transportation of goods is HR/61/4366. The .....

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to this vehicle is that no goods were moved because the invoice issued by Shree Sai International on the strength of invoices issued by M/s. Jagruti Resin Pvt. Ltd. and the goods of M/s. Jagruti Resin Pvt. Ltd. were transported by vehicle No. HR/55/0076. As stated by the owner of the vehicle No. HR/55/0076, the goods have not been transported.  In fact, in this case mere allegation has been made without recording the statement of the vehicle owner and the capacity of the vehicle has not bee .....

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