TMI Blog2016 (8) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... t cenvat credit. Whether the goods were physically received or otherwise by the appellants is a positive act, which must be proved with tangible evidence beyond any doubtand not with circumstantial evidences. In the present case charge of non receipt of goods was made against the appellant. The director in his statement categorically 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 tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per their statements the truck carried goods meant for the appellants was unloaded at Nagpur and not at Pune. On this 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 appellants Director and records maintained by the appellant, it is proved that the inputs were received and used in the appellants fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 against the appellants. In support of his submission the Ld. Counsel placed reliance on the judgment in the case of Commissioner of Cus. (Imports), Chennai-I Vs. Sainul Abideen Neelam 2014 (300) E.L.T. 342 (Mad.). 4. On the other hand, Shri Ashutosh Nath Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 authorities below and appreciation of the evidences, I find that the department s whole case is based on transporter s statement and statement of loading clerk who stated that the goods were not transported to Pune but to Nagpur. I find that mere statement is not sufficient to establish charge of fraudulent cenvat credit. Whether the goods were physically received or otherwise by the appellants is a positive act, which must be proved with tangible evidence beyond any doubtand not with circumstantial evidences. In the present case cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
