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2016 (8) TMI 1104 - CESTAT MUMBAI

2016 (8) TMI 1104 - CESTAT MUMBAI - 2016 (344) E.L.T. 1085 (Tri. - Mumbai) - Cenvat credit - fraudulently availed on the dealersí invoices without receipt of the inputs covered therein - appellant submitted that the goods were purchased, received and used in the appellant's factory as per the various records maintained by them and the goods covered by the invoices were received by the appellants - Held that:- that the departmentís whole case is based on transporterís statement and statement of l .....

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ly stated that they have received the goods covered under the sale invoices of dealers, the entries of such receipts were made in the stock account i.e. Form IV register and also in the accounts purchase ledger, the payments of the said purchases were made through cheques. This statement of the director could not be negated by the department. The charge of non-receipt of goods is only on the statements of transporter and loading clerk of the weigh bridge. The said statements can only be relied u .....

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llants. Hence, the order passed by the adjudicating authority is legal and proper and the impugned order is unsustainable. - Decided in favour of appellant - E/1327/2011 - A/88800/16/SMB - Dated:- 26-7-2016 - Shri Ramesh Nair, Member (Judicial) Shri D.H. Nadkarni, Advocate with Shri M.P. Joshi, Advocat for Appellant Shri Ashutosh Nath, Asstt. Commr. (A.R) for respondent ORDER The appeal is directed against Order-in-Appeal No. PIII/RS/92/2011 dt. 24.05.2011 passed by the Commissioner (Appeals) Ce .....

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is basis a show cause notice dated 19.6.2009 was issued with an allegation that the appellant have fraudulently availed cenvat credit on the dealers invoices without receipt of the inputs covered therein. Accordingly a demand amounting to ₹ 4,41,103/- was raised. The adjudicating authority dropped the proceeding of show cause notice on the ground that though there are statements of transporter and loading clerk stating the goods were delivered at Nagpur but as per the statement of appellan .....

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er of dealers invoices which are not in dispute. The said purchases were recorded in books of the appellant such as Form IV register and purchase ledger. The payments of such purchase were made through cheques to the seller of the goods. He submits that since the goods were purchased, received and used in the appellants factory as per the various records maintained by them, it is clearly established that the goods covered by the invoices were received by the appellants and cenvat was correctly a .....

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Ld. Commissioners order has no basis to sustain. He further submits that the only material relied upon in the show cause notice are statements of transporter, loading clerk and dealers. Since the goods were purchased from dealers, it is the dealers who can throw light on the facts of actual sales of the goods, therefore the appellant requested for cross examination of the dealers and transporters, but the same was denied. For this reason the statements of transporters could not have been used .....

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rried by the truck said to have been transported to Pune, were actually unloaded at Nagpur. This establish that the appellants have not received the goods in their Pune factory and availed Cenvat Credit only on invoices. He placed reliance on following judgments: (i) N.S. Mahesh Vs. Commissioner of Customs, Cochin 2016 (331) E.L.T. 402 (Ker.) (ii) Vishwa Vishal Engg. Ltd. Vs. Commissioner 2015 (318) E.L.T. A181 (Chhattisgarh) (iii) Harsaran Dass Sita Ram Vs. CCE 2015 (322) E.L.T. 686 (P & H) .....

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des. The facts are not much in dispute. The adjudicating authority dropped the proceedings mainly on the basis that the appellants received the goods on the basis that the purchase of goods, recording of same in the books of appellant and payments there against made to the seller of goods is not under dispute. The first appellate authority reversed the original order mainly on the ground that department have proved their case on circumstantial evidences. On consideration of findings of the autho .....

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