TMI Blog2016 (9) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... or not giving any reasonable opportunity of hearing. Further, in view of the findings of the Ld. Commissioner (Appeals), we find that the appellant seems to have received some scrap along with the duty paying document, also establishes the absence of collusion and or mala fide on the part of the appellant. I also take a notice of the fact that the appellant have, suo motu, reversed the Cenvat credit under dispute along with the interest prior to the enquiry initiated against them by the Revenue and issuing the show cause notice. Therefore, I hold that no case of contumacious conduct or fraud, is made out against the appellant. Hence, the penalty imposed under Rule 15 of CCR read with Section 11 AC of the Act is set aside. Also, the appellant will not be entitled to take re-credit of the amount reversed by them, suo motu. - Decided partly in favour of appellant - E/54587/2014-[SM] - Final Order No. 70626/2016 - Dated:- 5-8-2016 - Mr. Anil Choudhary, Member (Judicial) Shri Rajesh Chibber, Advocate for the Appellant (s) Shri D.K. Deb Assistant Commissioner, (A.R.) for the Department ORDER The appellant, a manufacturer of Ingots, is in appeal against Order-in-App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the purchase sale were made by him on paper only because of the fact that he was engaged in the work of purchase and sale of bill only on commission basis through brokers. He never hired the trucks for transportation of goods of purchase and sale of said scrap. He prepared only bills for sale as per advice of brokers. IV. During the course of statement of Shri Rakesh Agarwal, he was shown the details of payments of ₹ 1,38,58,410/- as prepared from their account statement. He put his dated signatures on the said statement. On being asked about the other details of payment made by them to M/s Jubilant Organosys Ltd Gjaraula from their PNB a/c No. 111600200029014 and the payments which have not been reflected in their said account was made by Shri Rakesh Pandit. However, the said Shri Agarwal in his further statement dated 04.07.2011 stated that they made payments to M/s Jubilant Organosys Ltd Gajraula from his accounts 1116002100029014 w.e.f. 05.05.2007 and prior to 05.05.2007 from his another PNB a/c No.1116002100026150. He also provided the copy of statement of the said account. V. On scrutiny of the aforesaid bank statements as provided by Shri Agarwal, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs, Shri Rakesh Agarwal stated that few G.Rs in respect of goods were issued and they did not have any other G.R. as they did not deal with the goods physically and only invoices were issued by them. IX. During the course of search on 13.01.2011, a list containing various vehicles number (RUD-24), stationary of blank weighment slips of Om Dharam Kanta, Gahaziabad Dharam Kanta Shardha Dharam Kanata, blank GR book of M/s Sharma Golden Transport Co. M/s Jagdamba Roadlines, as resumed at S. No.202, 220 222 of Panchnama dated 13.01.2011 (RUD-25), were also recovered from office premises of M/s Khameshwar Enterprises. As per their convenience, M/s Khameshwar Enterprises used such papers and picked up the vehicle number suiting to them while dealing with the papers in relation to scrap other materials. The above statement is corroborated from the averments made by Shri Naushad Accountant of M/s Khameshwar Enterprises in his statement dated 13.01.2011 (RUD-6) recorded on the spot, who clearly admitted to have built up papers and that they never received the goods physically in their premises. X. In question No.10 of statement dated 04.07.2011, Shri Agarwal was asked to provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps in respect of bills issued by them to their office. 3. Accordingly, vide aforementioned show cause notice, invoking the extended period, the appellant was required to show cause as to why Cenvat Credit amounting to ₹ 1,71,887/-, be not disallowed and recovered under Rule 14 of CCR, 2004, read with Section 11A of Central Excise Act, 1944 with proposal to appropriate equal amount of Cenvat Credit already reversed vide Entry No.219 dated 20.06.2011 and further, proposal to charge interest and appropriate the amount of ₹ 73,482/- already deposited through Challan dated 20.06.2011, and further, proposal to impose penalty under Rule 15 of CCR read with Section 11 AC of the Act. 4. The appellant appeared and contested the show cause notice, stating that they denied the allegations. Further, it has been urged that the whole case of Revenue is only based on the statements and they wish to cross-examine all such persons whose statements have been relied upon while issuing the show cause notice. Appellant further reserved their right to file a final reply, after the opportunity of cross-examination is allowed to them. It was further stated that they did receive the Scrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enquiry conducted in the premises of appellant, and the statement recorded of their authorized signatory Mr. Abdul Haq, does not amount to any admission of guilt or malpractice on their part. Further, there have been miscarriage of justice, as the Assistant Commissioner have failed to allow them the opportunity to cross-examine the witness of the Revenue, particularly, in view of the fact that the whole case of Revenue is based on statements. The Ld. Commissioner (Appeals) have also failed to record the finding on the ground raised, regarding denial of opportunity of cross-examine, resulting into failure of justice. Further, it is urged that the Commissioner (Appeals) has observed at Para 5.2, wherein it has been held that the grounds of the Revenue are enough to substantiate that the appellant has received non-cenvatable scrap of Iron and Steel on one hand and duty paying documents from the trading firm to regularize the receipt of scrap and availed Cenvat credit. The learned Counsel has also relied on the ruling of Hon'ble Allahabad High Court in the case of CCE Vs. Juhi Alloys Ltd. 2014 (302) E.L.T. 487, wherein the Hon'ble High Court under the facts that where invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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