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2016 (5) TMI 894 - CESTAT CHANDIGARH

2016 (5) TMI 894 - CESTAT CHANDIGARH - TMI - Denied cenvat credit on the evidence as no entry of vehicle no. at ICC, the statement of transporter/suppliers and the expert opinion of NISST - Availed cenvat credit on Bura scrap and furnace oil without actual receipt in their factory premises - Held that:- merely, the vehicles in question were not entered at ICC does not dis-entitle to the appellant to avail cenvat credit on the inputs in question. As the appellant has produced the certificate issu .....

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r Garg but Sh. Praveen Kumar Garg never appeared nor the cross examination of Sh. Praveen Kumar Garg was granted in that circumstances, statement of Sh. Praveen Kumar Garg have no evidentially value in the light of the decision in the case of CCE, Delhi-I Vs. M/s Vishnu & Co. Pvt. Ltd. [2015 (12) TMI 593 - DELHI HIGH COURT]. Some kachaa ledger was also recovered from Sh. Praveen Kumar Garg, the same cannot be relied upon as evidence in the matter as these records have been recovered from third p .....

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e certificate issued by the chartered Engineer who has physically visited the factory and stated that furnace oil is required for the running of induction furnace of the appellant. The said chartered engineer was not cross examined by the revenue, on the contrary, he affirmed the contents of the certificate issued by him therefore the said certificate is having evidential value. In the absence of any contrary evidence produced by the revenue, the certificate issued by the chartered engineer who .....

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ppeal Nos. E/3991/2010 And E/95-97/2011 And E/130/2011 - Dated:- 21-3-2016 - Ashok Jindal, Member (J) For the Petitioner : Mr Kamaljeet Singh, Adv For the Respondent : Shri G R Singh, AR ORDER Per Ashok Jindal The appellants namely Adhunik Alloys Ltd. (AAL), Authorised Signatory Darbara Singh, Director Sh. Vinod Garg and Sh. N.D. Garg and transporter M/s G.L. Khanna & Sons are in appeal against the impugned order. 2. The facts of the case are that an intelligence was received by DGCEI that M .....

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enquiry revealed that M/s AAL received only the invoices and not actually the Bura scrap. It was admitted by Sh. Darbara Singh Authorised Signatory of M/s AAL and voluntarily debited an amount of cenvat credit availed towards that. It was also found that there was a shortage of 6.205 MT of M.S. Ingots for which duty was paid immediately. On further investigation towards R-12 and ER-1 filed by the appellant, it revealed that M/s AAL procured furnace oil from M/s Lakra Oil Trading, M/s Durolines P .....

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furnace oil for which the details were sought. Later on, statement of suppliers/transporters were also recorded. The supplier namely M/s Ritco Kirti Associate (P) Ltd stated that they did not have any transaction with the appellants and they had not raised any invoice in the name of M/s G.L. Khanna but all other supplier of goods to the appellant for transporting the goods from Delhi to Ludhiana made the statement that they have supplied the goods to the appellants and the goods have been transp .....

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the cash to the appellant. The payment made through cheques were found entered in Pucca Ledger also. Later on, Sh. Parveen Kumar Garg retracted the statement made during the course of investigation and never appeared from further statement, although several summons were issued. A report was also obtained from the National Institute of Secondary Steel Technology Government of India, Mandi Gobindgarh who opined that furnace oil is never used in induction furnace for melting purposes but it is stat .....

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blished by Punjab Govt. under Punjab General Sales Tax Act, 1948 at the borders of Punjab State. (b) M/s Ritco Kirti Associate (P) Ltd Kirti Associates who purportedly transported the said goods to the party's premises have denied to have ever transported any goods to the party's premises. (c) The vehicles which purportedly ferried the said goods to the party's premises and which were not found entered at ICCs, turned out to be trucks as per the records of respective Distt. Transport .....

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overed from the premises of M/s LOTC (of Sh. Praveen Kumar Garg) has details regarding receipt of cheques from the party for the purported purchase of the said goods as well as the details of cash amounts equal to the cheque amount received from the actual buyers of the said goods. The said cash amounts were given by Sh. Praveen Kumar Garg to Sh. N.D. Garg, Director of the party, who deposited the same in the Bank of Punjab, Khan Market, New Delhi, account of M/s Brightwell Enterprises, a firm f .....

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te Bank of Indore and Bank of Punjab, New Delhi. (d) Sh. N.D. Garg could not produce the certificate issued by the Punjab Sales Tax Deptt. at all entries and exit points bordering Punjab to prove the genuineness of the receipt of the said goods in their factory. (e) The expert opinion obtained from the National Institute of Secondary Steel Technology (established by Ministry of Steel, Govt. of India) show that the party has shown disproportionately high procurement/consumption of the said goods .....

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Kamaljeet Singh Advocate the Ld. Counsel for the appellants submits that in this case, the appellants are contesting denial of cenvat credit on Bura scrap as well as furnace oil. It is contention that they received these inputs in their factory and same has been used in manufacturing of final product as all these goods were found entered in their statutory records and they were filling regularly R-12/ER-1 returns. He further submits that for denial of cenvat credit on Bura scrap, the appellant h .....

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cers, Ward No. 13, Ludhiana to say that the goods covered under the invoices in dispute have been received by the appellant and the same has been shown by the appellant in their VAT/Sales tax Return. He further submits that the revenue is heavily relied on the statement of Sh. Praveen Kumar Garg proprietor of M/s LOT. The statement cannot be relied upon, as the same was retracted very next date and no further statement of Sh. Praveen Kumar Garg was ever recorded and the appellant specifically as .....

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ed by revenue with positive evidence. He further stated that the expert opinion obtained on National Institute of Secondary Steel Technology cannot be relied upon as the same is vauge/ general statement. In these circumstances, it is prayed that the impugned order to be set aside. 4. On the other hand, the Ld. AR reiterated the finding in the impugned order and further submits that in the impugned order the Ld. Commissioner (A) has given the clear finding that there has no entry at ICC, as well .....

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material was required to be heated to temperature of 1850 C and the ladle is also preheated to 1850C; that the said statement of the CE is incorrect as no induction furnace is capable to hold molten temperature of 1850 C and whereas, temperate for ladle in 900 C only. The appellants have not contested these technical findings of the adjudicating authority and consequently, the certificate issued by the CE which is not concurrence with these technical specifications cannot be held technically co .....

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co Kirti Associate (P) Ltd were produced for cross-examination, but the counsel for the appellant chose not cross-examination the same, therefore, the statement by M/s Ritco Kirti Associate (P) Ltd is admissible. 6. Heard the parties and considered the submissions. 7. On careful consideration of submissions by both the sides, I find that the case of the revenue is that the appellant have not received inputs namely Bura scrap and furnace oil in their factory premises at all. For denial cenvat cre .....

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he finished goods found during the course of investigation. Considering the fact that the appellant has already paid duty thereon and the quantity found short is a meagre one therefore the same is confirmed. 9. For denial of cenvat credit on furnace oil, the case of revenue has relied on the following evidences. A. no entry of vehicle no at ICC B. The statement of transporter/suppliers and C. the expert opinion of NISST 10. The case of the revenue is that the furnace oil never cross the border o .....

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tion. As the appellant has produced the certificate issued by Excise & Taxation Officer of Punjab therefore, the appellant cannot be denial cenvat credit merely, on the ground that vehicle number have not crossed at ICC. I further find that in the case of Hitkari Industries Ltd. -2008(226) ELT 583 (Tri. Del.) and Himalayan Pipe Industries- 2013 (293) ELT 739 (Tri. Del.) this tribunal has also observed information revealed from Sales Tax Department are not reliable as the appellant has produc .....

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was retracted by him on from next date 26.02.2005 which was despatched on 28.02.2005 thereafter, various summons have been issued to Sh. Praveen Kumar Garg but Sh. Praveen Kumar Garg never appeared nor the cross examination of Sh. Praveen Kumar Garg was granted in that circumstances, statement of Sh. Praveen Kumar Garg have no evidentially value in the light of the decision in the case of M/s Vishnu & Co. Pvt. Ltd. (Supra) wherein the Hon'ble High Court Delhi has observed as under: 38. .....

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acted statements. 12. I also find that some kachaa ledger was also recovered from Sh. Praveen Kumar Garg, the same cannot be relied upon as evidence in the matter as these records have been recovered from third party whose cross examination has not granted to prove the truth, therefore these Kucha Ledger is not admissible as evidence. During the course of argument, the Ld. AR submits that M/s Ritco Kirti Associate (P) Ltd. has produced for cross examination. In fact the initially statement of Sh .....

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