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TMI Blog2017 (3) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... opper wire, rods and circles on the ground that they had received only cenvatable invoices but not the goods. The case was based on the statement of Shri R.K.Gupta who stated that he was registered with the Central Excise department as dealer in 1996 and surrendered registration certificate in 1997 and again obtained registration in February, 1999 and during the period 1996-2001 having turnover in crores. He further stated that the appellants were issuing the cenvatable invoices and receiving the payment through the cheque also receiving the cenvatable invoices from the suppliers and making them the payment through cheque. Shri R.K. Gupta also stated that the GRs are fictitious and these GR unsigned and incomplete address and these GRs are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross examination was granted to the appellant. It is nowhere has been investigated from where the goods received by the appellant or no investigation conducted in the premises to ascertain whether the appellants are maintaining the proper stock of the goods tallying with the statutory records. In that circumstance, it is very difficult to rely on the statement made by the third party that the appellants were involved in the activity of issuing fake invoices. Moreover, the case against the appellants is that the manufacturers/buyers of the goods have taken cenvat credit against the invoices issued by the appellants which are further issued by Shri R.K.Gupta to the manufacturers/buyers have been settled in favour of the manufacturer/buyers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactured finished goods and paid duly thereon, consequently, it was entitled to credit of 16% of value of the material, especially since it had shown manufacture of finished goods and had further paid duty on the finished goods and that the production having been duly shown in RG-1 register i.e. Annexure A-6 and paid duty on finished goods, there was no question of payment of duty, if no inputs had been received. Secondly, that the Division Bench of CESTAT had allowed the appeal of M/s. Garima Enterprises Private Limited i.e. one of the buyers of M/s. R.K. Enterprises and while allowing the appeal it had held that the statement of Shri R.K. Gupta revealed that besides issuing bogus Modvat Invoices, he was also issuing genuine invoices and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough a tempo was more than 6 ton, the transaction was bogus, but the appellant had neither purchased scrap nor material like scrap and had instead purchased Zinc Ingots which were not scrap. The material purchased was imported material and it had suffered excise duty at the time of clearance of goods from port. There was no evidence that duty paid material had been diverted and used by any third party and there was no advantage to the appellant to simply buy the invoice when it had paid duty on finished goods and payment was made through cheque. The appellant had been supplied material in truck Nos. HR 38B 0244, HR 38B 1101 and HRP 7671. No enquiry had been made from the owners/drivers of the aforementioned trucks and the enquiry made from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have dealt with issuance of bogus invoices. Therefore, I hold that the penalty under Rule 173Q of the Central Excise Rules, 1944 is not imposable. 8. Further, I find that as case against manufacturers/buyers who availed cenvat credit on the strength of invoices issued by Shri R.k.Gupta has been set aside by this Tribunal vide Final Order No.61136-61142/2016 dated 11.8.2016, therefore, penalty on the appellants is not imposable. Further, I find that as the appellants are dealers and no investigation was conducted at the end of the supplier of the goods and further no proper investigation was conducted at the end of the transporter/driver or in case of statement of the transporter has been recorded but no cross examination has been granted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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