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Emkay Fastners Pvt. Ltd., Shri Harikrishna Bhilalbhai Soneji, Shri Mohsin Hajibhai Memon, Shri Mohammadbhai Abdullali Master, Shri Suresh A. Bundiwal, Shri Pradeep Mishra Versus Commissioner of Central Excise, Thane

CENVAT credit - duty paying invoices - fake invoices - H.R. Trimmings & other secondary products - Held that: - in the case of Amar Ispat Pvt. Ltd., Sandeep Garg, Mohammad A. Master, Mohsin Hajibhai Memon, Harikrishna B. Soneji, Ram Awatar Agarwal & Diamond Roadways Versus Commissioner of Central Excise, Thane-I [2015 (11) TMI 373 - CESTAT MUMBAI], the facts and evidences and modus operandi in the present case are more or less same in these decisions therefore the ratio of the aforesaid decision .....

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83,187,188/10 - Dated:- 23-5-2017 - Shri Ramesh Nair, Member ( Judicial ) None for Appellant Shri M.R. Melvin, Supdt. (A.R) for respondent ORDER Per : Ramesh Nair These appeals are directed against Order-in-Appeal No. SB/108 to 114/Th-I/09 dt.05.11.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai-I whereby Ld. Commissioner (Appeals) upheld the Order-in-Original in toto. 2. The fact of the present case is that the appellants are engaged in the manufacture of M.S. Ingots falling .....

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ed by M/s. Jindal Iron & Steel Company Ltd. Vasind, Tarapur and M/s. Jindal Steel & Alloys Ltd. Vasind (hereinafter referred to as JISCO & JSAL respectively) without actually receiving the goods mentioned in the said invoices in their factories. On the basis of the intelligence gathered, it was revealed that M/s. Emkay Fastners Pvt. Ltd. were availing cenvat credit on the strength of invoices issued by M/s. JISCO and/or M/s. JSAL without actually receiving the goods mentioned in the .....

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ndiwal, General Manager/Authorized Signatory of M/s. Emkay Fasteners Pvt. Ltd. on 22.11.2006, under Section 14 of the Act. On the basis of ample evidences, the proposal of show cause notice were confirmed. Being aggrieved by the Order-in-Original dated 19/3/2008, appellants filed appeal before the Commissioner (Appeals) who upheld the Order-in-Original in toto and dismissed the appeal of the appellants, therefore appellants are before me. 3. None appeared for the appellants, despite giving repea .....

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n whatsoever or any evidence about the transport and non-receipt of HR Trimmings in their factory. He submits that on the basis of evidences collected during the investigation, the impugned order is correct and demand and penalty imposed on the appellants are in order. He placed reliance on the following judgments: (a) Amar Ispat Pvt Ltd Vs. Commissioner of Central Excise Thane-I[ Order No.A/1906-1912/15/EB(Tribunal)]. (b) Bhagwati Steel Cast Ltd. Vs. Commissioner of Central Excise, nashik [Orde .....

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record. 6. I find that this is a case of fraudulent Cenvat credit availed on the invoices issued by the M/s. Jindal Iron & Steel Co. Ltd and M/s. Jindal Steel & Alloys Ltd. On the identical facts and under same investigation in many other cases, demands were confirmed. On comparison with those cases disposed of by this Tribunal in particular Amar Ispat Pvt Ltd(supra), the facts, evidences and modus operandi of the appellants as well as in case of Amar Ispat Pvt Ltd (supra) are same ther .....

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all the invoices issued by M/s. Jindal Iron & Steel Co. Ltd and M/s. Jindal Steel & Alloys Ltd issued in respect of HRT scrap and addressed to the M/s. Emkay Fasteners Pvt. Ltd but goods were delivered to Viramgam based parties. Thus appellant availed Cenvat credit without receipt of the material. Thus appellant have availed fraudulent Cenvat credit. Following the decision of this Tribunal in the case of Amar Ispat Pvt Ltd(supra) the impugned order sustains. The relevant portion of said .....

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on the basis of such invoices without receiving the HR trimmings. During the investigation, the main appellant and their officials including appellant No.2 were specifically asked whether they have any evidence whatsoever to prove that the goods viz. HR trimmings covered by the said invoices were transported to their factory and received in their factory. The appellants could not produce copy of the Gate register, goods receipt note or LR or even any document evidencing payment of freight charge .....

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n. We are unable to understand that how the appellant is not able to produce any document relating to transport or receipt of the goods such as goods receipt note, independent weighment slip, gate register lorry receipt, payment receipts (which are normally given by the drivers of such vehicles) or any document of the transporter to prove that the goods covered by the invoices did travel from Jindals' units in Vasind and Tarapur to appellant's factory. We also note that almost in all tra .....

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ted a catena of evidences which include the transporter's record etc. as is evident from para 93 of the impugned order. These include, - (i) -"(v) From certified copies of Annexure-1 and Annexure-2 sent by Sales Tax Officer of Bhilad Check post it was found that vehicle No. GJ 10 U 7985 carrying H.R. Trimmings had passed through the check post to Gujarat on 14.12.2002. The said vehicle number is appearing on invoice No. 1207253 dated 14.12.2002 issued by M/s. JSAL favouring M/s. AIPL It .....

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ehicle No. GJ 10 U 8157 and GJ 13 T 5226 owned by Shri Suresh Jayantilal Vyas, were appearing on ten invoices of M/s. JISCO & M/s. JSAL which was in fact indicating that the goods i.e. H.R. Trimmings & M.S. scrap were transported to Gujarat and not to the factory premises of M/s. AIPL. (iv) - "viii) From the records of M/s. Gayatri Transport Service it was found that the goods covered under invoice No. 12109063 dated 31/2003 of M/s. JISCO, Tarapur issued in favour of M/s. AIPL was t .....

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er of vehicle No. GJ 10 U 4367 stated that they had loaded the above vehicle from Diamond Transport during the period April, 2000 to December, 2003 for Gujarat. The said vehicle is appearing on following invoices. Sr. No. Name of the supplier Factory location Invoice No. Date 1 Jindal Iron and Steel Co. Shahapur 1202146 11.9.02 2 Jindal Iron and Steel Co. Shahapur 1302059 4.6.03 3 Jindal Iron and Steel Co. Shahapur 1308745 21.11.03 4 Jindal Iron and Steel Co. Tarapur 13102274 5.7.03 5 Jindal Iro .....

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ived by the appellant. 9.1 It also defies any logic that the goods such as HR trimmings in the coil form which pan be used for the manufacture of items like nails or wires, would be used for I melting in the furnace. Even the prevailing prices of such HR trimmings will be much higher compared to normal iron and steel scrap and it does not make any economic sense for a manufacturer to use HR trimmings in coil form for purpose of melting. 10. The learned counsel for the appellants' main grieva .....

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id not produce a single evidence that the HR trimmings were transported to their factory and were received in their factory. They have also not given any explanation with reference to the records recovered from various transporters. Thus, even if the statements of the co-noticees are ignored, the demand will still hold good. If the main appellant would have produced some evidence to contradict Revenue's claim, we would perhaps be inclined to hold that denial of cross-examination has prejudic .....

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to Ram Avatar Singhal, Ram Kumar Mishra and Ram Bilas Mandal (driver), Jagdish Shanker Trivedi and Dilip Kumar Singhal, who refused to be cross-examined on the ground that they cannot be compelled to give incriminating evidence against themselves in view of their fundamental right guaranted by Article 20(3) of the Constitution under which no person accused of any offence shall be compelled to be a witness against himself. Section 124(c) which provided that no order confiscating any goods or imp .....

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ered view, these variations are not fatal in the facts and circumstances of the present case. It is a common knowledge that the persons who are familiar with the excise laws and are aware about the violations of excise law, they are indulging in them they do not disclose proper and true facts at the first instance and they tend to give at times misleading explanations. In the present case also, generally the co-noticees have said in the statements after assessing the information already availabl .....

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and the traders based in Viramgam have been recorded by Central Excise Intelligence and with reference to other cases. These persons are common in all such investigations. Few days back, we have decided a similar case in respect of Bhagwati Steelcast Ltd. wherein also some of the appellants are common and there the statements given by the appellants were more to the point. We have absolutely no hesitation whatsoever in holding that the appellant No. 3, 4 and 5 are Viramgam based brokers/traders .....

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