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TMI Blog2017 (11) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... tually despatched copper wire and in turn such recipient manufacturers availed cenvat credit by showing as if the said materials had actually been received by them and consumed in their factory. M/s Finecab Wires & Cables Pvt. Ltd. (appellant in appeal No.E/313/2012), hereinafter referred to as Finecab, was allegedly one of the units which appeared to have taken such cenvat credit irregularly. After causing investigations, including search of factory and office premises of Finecab, scrutiny of various records/documents, statements of Shri Ramnivas Bhutada, Managing Director of Finecab Wires & Cables Pvt. Ltd and other persons, department took the view that during the period June 2006 - July 2007, Finecab had availed cenvat credit totaling Rs. 1,86,38,408/- in respect of 73 consignments of copper wire on the strength of invoices, without actual receipt in their factory, on the strength of fabricated documents/ transactions. Accordingly, proceedings were inter-alia initiated against Finecab by way of a show cause notice dated 30.03.2011, culminating in the impugned adjudication order dated 31.10.2011, which inter-alia ordered recovery of irregularly availed cenvat credit amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disk of main server was seized and sent for forensic analysis, however no adverse data was found. 2.10) With regard to the allegation that in some cases, the vehicles shown as having been used for supply of raw material to M/s Finecab were busses and autos, it is contended that none of the concerned owners/drivers of the said vehicles had confronted by the department nor were any statements taken from them. 2.11) Ld. Consultant places reliance on the ratio of Tribunal's decision in Motabhai Iron & Steel Industries Vs CCE, Ahmedabad-II [2014(302) E.L.T 69 (Tri.-Ahmd.)], wherein it was held that credit cannot be disallowed on the basis of statements not corroborated by other evidence of goods not received by assessee. Appeal against this decision was dismissed by Hon'ble High Court of Gujarat as reported in [2015(316) E.L.T 374(Guj.) (where as per the evidence from the record, goods were duly found having recorded in assessee's factory and were consumed in production and payment was made through banking channel). 2.12) The ratio of the case of Motabhai Iron & Steel Industries judgment has been followed in a number of Tribunal's decisions viz; SM Energy Teknik & El ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve a domino effect on the appellants herein. 4.2 We have perused the samples of the invoices which form around 71 pages of the appeal book filed by the appellants. We find that these invoices, issued by M/s Sree Kumar Utensils Pvt. Ltd; M/s Sree Enterprises and M/s Gimpex, are in the prescribed format with details of central excise registration number, TIN, Division, ECC number of the supplier. The invoices also indicate the total assessable value and also cess on excise duty separately. The invoices also bear endorsement at the end of Finecab, indicating that receipt of the goods have been entered into RG 23A, part-I and part-ll. These facts are not disputed by the department. 4.3 In the reply of Finecab dated 03.06.2011 to the show cause notice, it has been informed that the dispute involves 71 and not 73 invoices and that Finecab had paid the suppliers for the goods received either by bank transfers or by credit notes or shown as payable in their books of accounts. However, these averments have neither been disproved by the adjudicating authority nor have been controverted by any evidence to the contrary. 4.4 Finecab have also contended that they have received only copper wir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raudulently covered by the "suspected" input invoices were not found in the factory. 4.6 There is no other evidence that has been adduced by the department to substantiate that Finecab had not received the inputs shown under 71 invoices of the suppliers. The assertion by Finecab that at the suppliers' end, excise duty had been discharged in respect of the goods covered in the invoices and that they themselves had made payments to the suppliers against those invoices by way of cheques, CR notes, Bank transfers etc., have also not been disproved or controverted by the department. 4.7 From paras 7 & 8 of the show cause notice, it emerges that during search of office premises of Finecab, a hard disk was disconnected from the main server, seized and sent to Government Examiner of Questioned Documents (GEQD), Hyderabad for necessary imaging and forensic analysis. The GEQD, vide a letter dated 05.11.2008 stated, that after analysis of the hard disk, no data relevant to the case was found in the suspected digital evidence storage media. From this vital fact, what emerges is that while the department could not make any headway in the search operations conducted at the factory premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri materia to those in these appeals before us. The relevant portions of the said judgment of Hon'ble High Court of Gujarat is reproduced for ready reference. "17. Thus, from the evidence on record, it appears that all the goods supplied by M/s. Motabhai Iron & Steel were accompanied by documents evidencing payment of duty. The representative of M/s. Motabhai Iron & Steel had nowhere admitted that the assessee was issued only invoices and that there was no delivery of goods to the assessee. Besides, all the payments that were made to M/s. Motabhai Iron & Steel were made through bank drafts. The Tribunal has also noted that, in all, demand was made in respect of 44 consignments. However, it was only in respect of two transporters, who had transported merely three consignments that the alleged discrepancy had been pointed out, whereas, in case of other transporters, no discrepancy has been found. In the light of the aforesaid findings recorded by the Tribunal, it cannot be said that there is any error in the conclusion arrived at by the Tribunal while deleting the demand of Rs. 13,62,301/-. 18. As regards the demand of Rs. 2,94,274/-, the Tribunal has recorded thus : "In resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel for the appellant is not in a position to point out any material to the contrary so as to dislodge the finding of facts recorded by the Tribunal. Under the circumstances, 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. Moreover, as rightly pointed out by the learned advocate for the respondent, even if on the same material it was possible to take a different view, the same would not give rise to a substantial question of law." We also find that the ratio of the decision/judgment in the Motabhai Iron & Steel industries (supra) was followed in the cases of SM Energy Teknik & Electronics Ltd. [2015(328) E.L.T. 443 (Tri.-Ahmd); Akshay LPG Valves [2016(337) E.L.T. 129 (Tri.-Hyd) and Krebs Biochemicals & Industries Limited [2017(352) E.L.T. 261 (Tri.-Hyd.)]. 6. We are, therefore, of the considered opinion that the impugned order confirming the allegations as made out in the show cause notice, fails the test of legal scrutiny. This being so, the impugned order in respect of both M/s Finecab (Appeal No: E/313/2012) a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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