TMI Blog2017 (11) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... said DRI investigations, there is no precision or proof even to a prudent degree to back up the allegations against Finecab made by the department, surely, suspicion or presumption cannot take the place of proof. Reliance placed in the case of M/s Motabhai Iron & Steel Industries and others Versus CCE Ahmedabad-II [2014 (2) TMI 63 - CESTAT AHMEDABAD], where it was held that in absence of any perversity in the findings recorded by the Tribunal, the impugned order does not give rise to any question of law, much less, a substantial question of law so as to warrant interference. The impugned order confirming the allegations as made out in the show cause notice, fails the test of legal scrutiny. - Appeal allowed - decided in favor of appellant. - E/313-314/2012 - A/31809-31810/2017 - Dated:- 13-11-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Shri Joseph Dominic, Consultant for the Appellant Sh. Tarun Kant Basu, Asst. Commissioner/ (AR) for the Respondent. ORDER [Order per: Madhu Mohan Damodhar] 1. The facts leading to the present dispute are that the Directorate of Revenue Intelligence (DRI) had conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee Enterprises and (iii) M/s Gimpex. 2.2) The fact that appropriate duty was paid on these goods is never any doubt and is not disputed by department either. 2.3) Adjudicating authority has referred to investigations of DRI and stated that supplier units had imported copper rods under export incentive schemes, however had not put them to further use instead diverted as such. This contention is factually incorrect since show cause notices issued by DRI to said importers clearly showed that only one importer namely M/s SKULP had diverted imported goods in that manner. There is no such allegation against other two suppliers. 2.4) No investigation was conducted by Hyderabad-I Commissionerate to ascertain whether any manufacturing activity went on in the suppliers' units. 2.5) Ld. Consultant took us to copies of the input invoices filed in pages 28 to 98 of the appeal book, to emphasize that they had received copper wire only on duty paid invoices of such suppliers and that the fact of receipt of the copper wire thereat had been entered in their RG23A, Part-I Part-II and in their private records. 2.6) Payments have been made by Finecab for all said receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector Shri Ramnivas Bhutada and Shri David Raju, Manager (Administration) of M/s Finecab. Statements recorded by DRI during their investigations of various persons connected with the said suppliers, have brought out vital facts on the basis of which also, these allegations have been made. Study of electricity consumption of the supplying units had indicated that units have consumed negligible amount of electricity which was not sufficient for drawing such a large quantity of copper wire supplied by them. M/s Finecab also paid up an amount of ₹ 75,33,154/- during investigation. All these facts have been analysed by the adjudicating authority while arriving at his decision in the said impugned order. Hence the appeals may be dismissed. 4.1 Heard both sides and have gone through the facts. Indubitably, the allegations relating to the present appeal are a fallout of the investigations made by DRI against importers of copper rods under Target Plus Scheme, who had allegedly disposed of the copper rods but had allegedly shown that they had been received in their factory premises, converted into copper wire and despatched to recipient manufacturers. The main edifice of the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Interestingly, this very allegation by the department will cut both ways. If there is an assertion by department that copper rods, instead of copper wire have been received in some invoices, by the same token, the department should then not have any doubt in respect of receipt of copper wire in the remaining invoices, unless they have specific and conclusive evidence to prove the contrary. 4.5 The Annexure C to the show cause notice includes, as a retied upon document, a panchanama dated 01.11.2007 drawn at the factory premises of Finecab. A reference to this search operation is given in para 601 of the show cause notice. However, no further facts, whatsoever, are forthcoming in the notice about focus of the said search operations and the results thereof. In our mind, if there was specific information, as narrated in par 3 of the notice, that Finecab were obtaining bills/invoices for copper wire from the said importers and were illegally availing cenvat credit on the strength of such documents, without actual receipt of inputs covered by such documents , one prime focus of the search operations would be stock taking of the inputs to confirm the aforesaid specific informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f evidence, interalia, resorts to taking shelter of the observations of Hon ble Supreme Court in the case of CC Madras Others Vs. D. Bhoormull [1983(13) E.L.T. 1546 (SC). No doubt, the Hon'ble Apex Court in their landmark judgment had observed that prosecution of Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth .. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. However, in the present case, the department has not been able to establish even a preponderance of probability to back up the allegations made out against Finecab. Having drawn nothing from the separate investigations on Finecab including search of the factory premises, search of office premises, recovery of hard disk of main server and its analysis, recording statements of co-persons etc., the department has then resorted to draw in probable conclusions from an earlier DRI investigation into importers of copper rods and initiated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts evidentiary value. Apart from above, I also find that payment to M/s. Vasmin Corporation for purchases was made through banking channels and therefore, the demands cannot be confirmed against the Appellant. I therefore, hold that the demand cannot be confirmed against the appellant. 19. From the findings recorded by the Tribunal, it is apparent that payment to M/s. Vasmin Corporation in respect of purchases was made through banking channels. Under the circumstances, the Tribunal has lightly held that the demand cannot be confirmed against the assessee. The Tribunal has further found that it is an undisputed fact that all the purchases were duly recorded in the statutory books of the assessee and the goods were also found to be entered in its statutory records. That the Department had not made any investigation at the unit of the assessee, which could have supported the findings of the adjudicating authority. None of the consignors of the goods have denied the clearance of goods to the assessee. There was no evidence on record to show that the records maintained by the assessee were not correct. The Tribunal, was accordingly, of the view that on the basis of statements ..... 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