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2016 (6) TMI 913 - CESTAT HYDERABAD

2016 (6) TMI 913 - CESTAT HYDERABAD - TMI - Cenvat Credit - proceedings initiated by the show cause notice issued alleging wrongful availement of credit without actual receipt of goods - Held that:- This Tribunal in the final Order dated 20-01-2016, in the case of M/s Sri Lakshmi Industries Ltd and another [2016 (6) TMI 823 - CESTAT HYDERABAD] has analyzed the very same evidence and has set aside the demand raised on the allegation of fraudulent availment of credit on invoices issued by KMC. Aft .....

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ration in the above two appeals being the same, they were heard together and are disposed by this common order. 2. E/258/2010 is an appeal filed by Revenue against the Order-in-Appeal dated 31-03-2009 passed by Commissioner(Appeals) which set aside the demand, interest and penalty which was raised on the allegation of wrongful availment of Cenvat credit without actual receipt of goods. During the investigation, the respondents had deposited ₹ 3,00,000/- by way of TR-6 Challan dated 07-06-2 .....

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by the Commissioner (Appeals) vide order dated 21-10-2010. The appeal No.E/826/2010 is the appeal filed by department challenging the sanction of refund. 3. I will first take up the main appeal E/258/2010. The adjudicating authority as well as the Commissioner (Appeals) held that Revenue failed to establish the allegation that respondents availed Cenvat credit without actual receipt of goods. The respondents are manufacturers of Aluminium containers, capacitors Housings and Aluminium cups. The .....

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) In certain cases, the goods purported to have been received from ALL are not entered in these registers. ii) In certain cases, the entries relating to the goods purported to have been received from AAL and KMC were inserted between two entries and were given the same serial numbers of the earlier entries but suffixed with Alphabet A iii) In certain cases, the entries relating to the goods purported to have been received from AAL and KMC and not in chronological order. 5. The investigation star .....

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The learned AR contended that the statement made by Shri Peddi Raju, central Excise in charge of AAL correlate with statement of Shri G.Venkata Rao of the respondent company. That the statements being correlated would establish probability of the fact that respondents were indulging in wrongful availment of Cenvat credit. I am afraid that I cannot endorse this contention. It is settled law that the statements should be corroborated by independent evidence. In this regard, the observation made by .....

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contended by the respondents that had there been any non/short receipts then it would have got reflected in their inventory and there would be negative balances at the end of the financial year, which however is not the case. Hence, I find adequate force in the contention of the respondents in as much as it is not the case of investigation that there was any shortage of physical stocks vis-a-vis the recorded book stock at the time of search. The Chartered Accountant s certificate reconciling th .....

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es. In the absence of corroborative evidence, mere reliance on statements is of no help to the department s case . 6. On analysation of the evidence before me, I do find merit in the conclusion made by the Commissioner(Appeals). The authority below has rightly placed reliance on the judgment of the Tribunal in the case of M/s Lloyds Metal engineering Ltd 2004(175) ELT 132(Tri-Mum). 7. In addition, it has to be stated that in connected matters of co-noticees, this Tribunal as well as Commissioner .....

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r implicit meaning of the charge made is that the sheets of thickness 0.25 and 3.00 have actually been invoiced but have been diverted either by KMC or the appellants and in its place; sheets of desired thickness have been substituted. However, except for the presumption, there is no support to the implied charge by any documentary evidence. Also, there is no incentive for such substitution as the price range of the sheets is more or less same and such sheets are manufactured only by reputed man .....

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nd substitution and the manufacturer also does not gain anything. Therefore, the allegation of diversion or non use of sheets, in my view, is not sustained for lack of evidence and the corresponding demand, therefore is liable to be set aside. 9. In Order-in-Appeal No.101/2009, dated 11-12-2009 in the appeal filed by M/s Sri Lakshmi Industries Ltd, the Commissioner (Appeals) observed as below: The truth or the real face would be known if the stock register and stocks of inputs were verified with .....

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relied fully, when he is not a party to the notice and as per his own admission, has been actively engaged in issuing inputs under kacha bills to unidentified manufacturers in and around Hyderabad 10. In Order-in-Appeal No.26, 27, 28/2010, dated 26-02-2010 in the appeals filed by M/s Prism Airtech &KMC, the Commissioner (Appeals) observed as under: The burden is on the investigation to prove that the appellants have merely received Cenvatable invoices without the accompanying materials. As .....

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