TMI Blog2016 (12) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... in total contradiction to the case setup by department that no goods at all were supplied by M/s Aerochem and that all the transactions were being fabricated by issuing fake invoices only. This together with the fact that appellant has been discharging huge amount of duty and the invoice being only a single invoice, which the appellant has been able to establish with documentary evidence maintained in the course of business, that the goods have been received in the factory, I am of the view that the allegation raised against the appellant in the show cause notice cannot succeed. The department has failed to establish conclusively that the appellant has not received the goods in to the factory with regard to the disputed invoice - demand no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were not cleared from the originating factory at all, the usage of the same by any other unit in or in relation to the manufacture of finished goods is not possible. Consequently, cenvat credit on such non-existent raw materials was not admissible in terms of the provisions of CCR. Based on the evidences and depositions made, it was alleged that the appellant deliberately indulged in availment and utilization of cenvat credit fraudulently availed against invoice number 267 dated 03-08-2009 issued by M/s Aerochem without actual receipt of goods covered by the document. 1.3 Accordingly, a show cause notice was issued to the appellants demanding ₹ 2,37,312/- as per the above invoice along with interest and also invoking penal prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weighment was done at an outside weigh bridge which would all the more establish the receipt of material into the factory as reflected in the records maintained by the appellant. It is submitted that they have made payment by way of cheque and not in cash and that the payment made includes the value of material as well as the taxes which includes Central Excise duty. The appellant have been wrongly implicated alleging that the goods shown in the duty paid documents /invoice were not cleared from the originating factory at all, and therefore, the same cannot be received or used by the appellant in manufacture of finished goods. Based on the evidences, collected from M/s YM Drugs and M/s Aerochem Impex Pvt Ltd. and M/s Aerochem and also on d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods received note (d) Copy of the Karan weighbridge (f) Copy of invoice issued by M/s Aeorochem and copy of inward register. The Ld. Counsel submitted that the original authority had pointed out discrepancy in the vehicle number, which was satisfactorily explained by the appellant. The appellant submitted that the material was sent In another vehicle, though in the invoice the transporting vehicle number was shown as AP24V3530. However, in the inward security book, and the weighment slip the correct vehicle number was shown. Another discrepancy alleged by department is that, the net weight of the goods according to the weighment slip is shown as 2160 kgs whereas appellant entered in the statutory records the net weight of goods received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Invoices to M/s Aerochem, as if the said material was manufactured. In turn, M/s Aeorchem has issued these invoices to the appellant and other manufacturers. That the fact of non existence of a firm, by name M/s Mehta and Co. Mumbai, itself would make it crystal clear that the invoice issued is dummy invoice for availing fraudulent credit. 6. I have heard both sides. 7. The foremost fact that has to be pointed out is that the dispute is confined to only a single invoice No.267 dated 03-08-2009 for supply of Acetonitrile for an amount of ₹ 2,37,312/-. The appellants have submitted that there is only a single instance of supply of materials by M/s Aerochem. Although the department alleges non receipt of goods in regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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