TMI Blog2017 (11) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... ts made to M/s. M.K.Steels as consideration for the bought out inputs were received back by the appellants in cash. I also note that Shri S.K.Gupta apart from making bald statement that the amounts were returned to the assessee through broker, who was given 1% commission has given no further details. There is nothing on record to establish the said transactions. Appeal allowed - decided in favor of appellant. - Appeal Nos. E/25/2010 & E/26/2010 - Order No. F/O-77772-73/2017 - Dated:- 8-11-2017 - Mrs. Archana Wadhwa, Member ( Judicial ) Shri B. N. Chattopadhyay, Consultant for the Appellant Shri A. Roy, Suptd. ( AR ) for the Respondent ORDER Per Mrs. Archana Wadhwa. 1. Both the appeals are being disposed of by a common order as they are arising out of the same impugned order passed by the Commissioner (Appeals). 2. After hearing both sides I find that the appellants are engaged in manufacturing of Steel Rolls and procured the inputs from one M/s. M.K.Steels which is a registered dealer. Such procurement was on the basis of the invoices issued by said dealer wherein the particulars were reflected. On the basis of the same the appellant availed cenvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed by the Hon ble Punjab Haryana High Court. I also note that the said High Court in the case of Jindal Drugs Pvt. Ltd. vs. Union of India [2016(340) E.L.T. 67 (P H) has held that the statement are recorded behind back of the assessee and cannot be relied upon in adjudication proceedings without allowing the assessee an opportunity to test evidence by cross-examining makers of said statement. Such statement cannot be relied straightway by Adjudicating Authority and can be relied only after the procedure prescribed in clause(b) of Section 9D(1) of Central Excise Act is duly followed. In the absence of such cross-examination and examination in chief, the statement on which the Revenue seeks to rely, have to be excluded from evidence. 7. I also find that the appellants have made payment to Shri S.K.Gupta by cheques. Apart from the statement of Shri S.K.Gupta that such cheques were subsequently encashed by him and the amounts were returned to the appellants, there is virtually no evidence to establish the said fact. Revenue has not investigated the matter with the banks and has made no efforts to establish that the cheque payments made to M/s. M.K.Steels as consideration for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a lacuna in the Revenue s investigations to that extent also. 8. At this stage reference may be made to the provisions of Rule 9(3) of the Cenvat Credit Rules which requires an assessee to acquaint himself with the identity of the supplier of inputs. The name and address of M/s. M.K.Steel given in the invoices along with his registration number which admittedly also contains cross reference of the invoices of M/s. Durgapur Steel Plant showing payment of duty. As such the requirement of said Rule 9(3) stands fully complied with in as much as the appellant, by referring to the address and registration number of the inputs supplier, can be said to have fulfilled the factum of knowing his dealer. 9. At this stage I may refer to certain decisions of the Tribunal or Higher Court involving more or less identical facts. a) The Hon ble Jharkhand High Court in the case of Commr. Of C.Ex., East Singhbhum vs. Tata Motors Ltd. [2013(294) E.L.T. 394(Jhar.)] has held that non-payment of duty by the inputs supplier is immaterial and unless factually it was established to the contrary, it is presumed that when payments were made on the inputs, buyer is entitled to claim cenvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques. f) Further, the Tribunal in the case of HBR Steel Corporation vs. Commr. Of C.Ex., Ludhiana [2008(225) E.L.T. 102(Tri.-Del.)] also held that wrong vehicle numbers mentioned in the invoices cannot be admitted as an evidence for denial of the credit when payments were made by cheques. g) Further, the Tribunal in a recent decision in the case of ANJ Metal Recycling Pvt. Ltd. vs. Commr. Of C.Ex., Chandigarh [2016(337) E.L.T. 453 (Tri.-Chan.)] has extended the benefit of cenvat credit to the appellant therein by observing that as per Rule 9(3) of the Cenvat Credit Rules, 2004, the assessee is required to ensure that the inputs supplied by the dealer were accompanied with the documents and on production of such invoice, the requirements of Rule-9(3) get satisfied and it is for the Revenue to produce sufficient material evidence on record to show that the dealer who had issued the invoices were non-existence and were non-registered with the department during the relevant period. 10. Though I find that all the above decisions are fully applicable to the facts of the present case but a special reference can be made to the Tribunal s latest decision in the case of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
