TMI Blog2016 (6) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... nown in the market as “Mayur Fans” There is no evidence to link the entries resumed with the appellant. One of the grounds relied by department is that the specification of thickness of sheets shown in the invoices do not match with the specification of sheet thickness required by the appellant for manufacture of fan blades. This is answered by the appellant saying that they use sheets with thickness ranging from 0.7mm to 1.22mm. The department has not adduced any evidence to show that the fan blades manufactured by appellants cannot be manufactured using sheets of thickness as stated to have been used by appellant. The main evidence relied by department is the private note book resumed from the residence of Shri Prabhakar of KMC. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MC in which case, the goods are dispatched directly from BALCO/NALCO to appellants and the price is collected from appellants on invoices raised by KMC. The appellant s availed Cenvat credit facility on invoices issued for purchase of inputs. 2. The case of the department is that on specific intelligence, by DGCEI it was found that appellants were indulging in fraudulent availment of Cenvat credit. The allegation is that during the period January, 2003 to February, 2007, the appellant availed Cenvat credit on input invoices issued by M/s KMC/BALCO/NALCO/ALL, who issued the invoices to appellants without actual supply of materials mentioned in the invoices. A search was conducted in the residential premises of Sri Prabhakar, Manager of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent thickness was shown in the invoices. That to manufacture final products, the appellants can use aluminium sheets of thickness either 0.9 to 1.05 mm. But the invoices show that appellants have received sheets of thickness less than 0.9 or more than 1.05 mm. That it indicates that such goods were never received in the factory. 3. A show cause notice was issued alleging that appellant had availed Cenvat credit fraudulently using the invoices issued by KMC and AAL without actual receipt of the goods. The notice inter-alia proposed to demand an amount of ₹ 30,73,605/- alleged to be fraudulently availed credit, along with interest and equal amount of penalty. It also proposed confiscation of goods on disputed invoices and goods cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Mayur. Prabhakar has given contrary explanations with regard to the figures in the private note books. When goods were dispatched to appellant directly from BALCO/NALCO through KMC, the same were accompanied by invoices and delivery challan. Out of 471 delivery challans pertaining to the relevant period only 14DC were examined by the authority. Examination of all the DC would establish that goods were supplied and the correlation with job work challans could also be seen. Even though invoices contained vehicle numbers, none of the drivers of the said vehicles were examined to ascertain the factual position. Further that, the allegation is that a quantity of 185.25 MT of inputs were diverted. Then the authorities ought to have ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation is that KMC has sold the goods in open market without issuing invoices, to those buyers who were not entitled to take credit. KMC then issued Cenvatable invoices to various manufacturers including the appellant without supply of goods. That such manufactures, including appellant made payment by cheque, and KMC returned the sum to them by cash. That the appellant thus did not receive the goods but received only invoices and availed credit fraudulently on such invoices. One of the grounds relied by department is that the specification of thickness of sheets shown in the invoices do not match with the specification of sheet thickness required by the appellant for manufacture of fan blades. This is answered by the appellant saying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al witnesses to prove that the goods were not supplied as per the invoices. It is also to be noted that appellant voluntarily submitted 471 delivery challans to substantiate his side that the goods were received in the factory. But department has relied upon 14 delivery challans only and failed to consider the remaining delivery challans produced by appellants. The statement of Shri. Prabhakar is not corroborated by cogent evidence to establish the allegation against appellants. The payments were made by appellant through cheque. But there are no records to establish from the accounts of appellant that there was any cash flow from appellant to KMC. 8. On an overall appreciation of facts and evidence it is seen that whole case is based u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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