TMI Blog2015 (5) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... manating from the same central source of investigation at M/s. Majestic Industries Ltd. end, no different view can be adopted, at least, at this interim stage of stay. - E/51796 and 51980/2014-EX(DB) - Stay Order Nos. 51651-51652/2015-EX(DB) - Dated:- 7-5-2015 - Ms. Archana Wadhwa, Member (J) and Shri Rakesh Kumar, Member (T) Third Member on Reference : Shri R.K. Singh, Member (T) Shri Kamaljeet Singh, Advocate, for the Appellant. Shri Yashpal Sharma, D.R., for the Respondent. ORDER [Order per : Archana Wadhwa, Member (J)]. - The appellants have been denied the Cenvat credit of ₹ 55,91,314/- availed by them during the period 1-5-1997 to 3-2-2000 on the ground that the dealer, M/s. Majestic Industries Ltd. have issued only the paper invoices without corresponding supply of the inputs and in addition, penalty of identical amount stands imposed upon them. 2. We find that M/s. Majestic Industries Ltd. was a registered dealer with the Revenue and investigations were initiated against at his end. It was allegedly found that only paper invoices were being issued by him and the number of vehicles shown in the invoices raised by him actually belong to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be adopted for the purpose of denial of credit. The Tribunal also observed that inasmuch as the assessee was filing regularly RT-12 returns and the credit having been availed in 1996 whereas the investigations were made in the year 2000, the result of the investigations cannot be upheld. 6. Being aggrieved with the said order of the Tribunal, Revenue further carried the matter to the Hon ble Punjab Haryana High Court in the case of Commissioner of Central Excise v. Shakti Roll Cold Strips Pvt. Ltd. - 2008 (229) E.L.T. 661 (P H). The Hon ble High Court took note of the entire facts including the fact of the statement of the transporter having denied the transportation of the goods. However, by observing that the Tribunal has already arrived at a finding that all the payments were made through cheque/demand drafts and the goods were being reflected in the RT-12 Returns, which have been assessed finally by the Range officers, did not find any merit in the Revenue s appeal and rejected the same. 7. The said order of the Hon ble Punjab Haryana High Court was further appealed against by the Revenue before the Hon ble Supreme Court when the appeal was rejected as reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts, which were different in the case of M/s. Ranjeev Alloys Ltd. (supra) cannot be made the basis for arriving at different finding in the present case, where identical set of facts and submissions already stand concluded against the Revenue at the Higher Court. In view of the above, we find that the appellant have good prima facie case in its favour so as to allow the stay petition unconditionally. We allow the stay petitions. Sd/- (Archana Wadhwa) Member (Judicial) 11. [ Order per : Rakesh Kumar, Member (T) ]. - I have heard the order dictated by my learned sister. Since I do not agree with her, I record a separate order as follows :- 12. In this case the Cenvat credit demand of ₹ 55,91,314/- has been confirmed against M/s. Majestic Metallic Ltd., a manufacturer of galvanised steel tapes from C.R. Strips and Zinc. M/s. Majestic Metallic Ltd. have claimed the receipt of the C.R. Strips from M/s. Majestic Industries Ltd., a registered dealer and on the basis of 169 invoices regarding supply of C.R. Strips issued by M/s. Majestic Industries Ltd. had taken the above mentioned Cenvat credit. The allegation of the department is that the registered deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving that the goods had actually been received by the manufacturer would shift to the manufacturer, who had availed the Cenvat credit and the manufacturer who would have to produce evidence in support of his claim of having received the goods. If he fails to produce such evidence, it can be presumed that the manufacturer has taken Cenvat credit on the basis of bogus invoices without actual receipt of the goods covered under the invoices. This view is in accordance with the judgments of the Apex Court in cases of - (a) Commissioner of Police, New Delhi v. Narender Singh reported in 2006 (4) SCC 265 wherein it has been held that the standard of proof required is a departmental proceeding and in a criminal proceedings are different and while in a criminal proceeding, the charges is required to be proved beyond any reasonable doubt, in a departmental proceeding, the evidence to establish preponderance of probability would be sufficient to establish the charge; and (b) Kanungo Co. v. Commissioner of Customs reported in AIR 1972 SC 2136 = 1983 (13) E.L.T. 1486 (S.C.) and Commissioner of Customs, Madras v. D. Bhoormull reported in 1983 (13) E.L.T. 1546 (S.C.) wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Advocate for the appellant having based on the different set of facts is not applicable to the facts of this case. 15. In view of the above discussion, I am of the view that this is not the case where the requirement of pre-deposit of Cenvat credit demand, interest and penalty can be unconditionally waived. I, therefore, direct M/s. Majestic Metaliks Ltd. to deposit ₹ 25,00,000/- (Rupees twenty five lakhs only) for compliance with the provisions of Section 35F within a period of eight weeks and direct M/s. Majestic Industries Ltd. to deposit an amount of ₹ 2,00,000/- (Rupees two lakh only) within a period of eight weeks from today for compliance with the provisions of Section 35F of the Act. On deposit of these amounts within the stipulated period, the requirement of pre-deposit of balance amount of Cenvat credit demand, interest and penalty shall stand waived and its recovery stayed till the disposal of the appeals. Sd/- (Rakesh Kumar) Member (Technical) 16. Since there is difference of opinion between Member (Judicial) and Member (Technical), the Registry is directed to place this matter before Hon ble President for nominating a third Member f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc., in which the goods shown to have been supplied, could not be transported. (c) In 13 cases, while the GRs have been issued by the Transport Company viz. M/s. SKS Road Lines, on enquiry, it was found that there was no transport company at the given address. (d) In some cases, the GRs said to have been issued by M/s. Walia Cargo Carriers and under which the goods covered by the invoices, in question, are claimed to have been transported, were found to be fake, as the transport company, M/s. Walia Cargo Carriers denied to have transported the goods. 12.1 It is in view of the above facts that the Commissioner confirmed the above mentioned Cenvat credit demand against M/s. Majestic Metaliks Ltd. along with interest and imposed penalty of equal amount on them besides penalty of ₹ 15,00,000/- on M/s. Majestic Industries Ltd. for issuing fake invoices. 19. In the light of the above facts, ld. Member (Technical) was of the view that full waiver of pre-deposit is not warranted in the present case and thereby ordered a pre-deposit of ₹ 25 lakhs by M/s. Majestic Industries Ltd. and ₹ 2 lakhs by M/s. Majestic Metaliks Ltd. and added that cross-exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court was also dismissed [2009 (242) E.L.T. A83 (S.C.)] and when the statements of transporters were relied upon without affording cross-examination, no pre-deposit should be ordered in these appeals. They also stated that as per newspaper reports, the cases of transport vehicles using fake number plates are not unheard of and produced some newspaper cuttings containing such news. 22. I have considered the contentions of the appellants and the observations of ld. Member (Judicial) and ld. Member (Technical). Ordinarily in the wake of the kind of evidence found against the appellants including non-existence of road transport companies, whose GRs were produced, the registration numbers of vehicles claimed to have transported the goods being of such vehicles which cannot carry such items, etc., full waiver of pre-deposit would not be in order specially in the wake of the judgment of Punjab Haryana High Court in the case of Ranjeev Alloys Ltd. (supra). However, it is seen that in the case of Shakti Roll Cold Strips Pvt. Ltd. (supra), the Commissioner (Appeals) vide order dated 15-12-2004 allowed the appeal of the assessee observing that the adjudicating authority has pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains all the documents including the invoices under dispute on the basis of which the Modvat credit has been availed and utilised and that payments for the purchase of the inputs have been made through cheque/demand draft. 23. Careful perusal of the High Court s order reveals that the facts/evidence in the case of Shakti Roll Cold Strips (supra) may not have been identical with the facts/evidence in the present appeals inasmuch as, for example, in that case, as noted by the High Court the Tribunal had recorded a finding of the fact that the input supplied by the respondents were duly received and were used for manufacturing final products , while no such finding has been recorded in the present case. However, at this interlocutory stage, it cannot be ignored that the evidences which have been relied upon by Revenue in the present appeals are pretty similar to the evidences which were obtaining against the assessee in the case of Shakti Roll Cold Pvt. Ltd. (supra). Even the evidence in that case (i.e., Shakti Roll Cold Strips Pvt. Ltd.) that the vehicle numbers which were shown to have transported the goods were of such nature which cannot transport such goods was also taken not ..... 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