9911796707
TMI Blog2018 (5) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... mely, M/s Goodluck Empire and M/s Jenil Empire without receipt of the inputs, mentioned against each of the invoices issued by the said dealers. Hence, the said credit was proposed to be recovered along with interest and penalties by issuance of show cause notice dated 03.5.2011. On adjudication, the demand was confirmed with interest and equal amount of penalty under Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944; personal penalty of Rs. 10.00 lakhs imposed on Shri Nareshbhai V.Changrani, Director of M/s Universal Metals Company Limited; Rs. 5.00 lakhs each on Shri Gulamabbas Ali Nurani, Authorised person of M/s Goodluck Empire and Shri Sunil Parikh, proprietor of M/s Jenil Empire under Rule 26 of Central Excise Rules, 2002. Aggrieved by the said order, the appellants filed appeals before the ld. Commissioner (Appeals), who in turn, rejected their appeals. Hence, the present appeals. 3. Ld. Advocate Shri J.C. Patel, Advocate for the appellants has submitted that M/s Universal Metals Company Limited, have correctly availed CENVAT credit on the invoices issued by the registered dealers namely, M/s Goodluck Empire and M/s Jenil Empire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inputs were purchased from the dealers on FOR basis and hence the transportation of the said inputs were arranged by the dealers. Thus, it was their responsibility to transport the inputs to the premises of the Appellant. It is his contention that Department has not carried out any investigation at the end of the Transport Agency who has issued the LRs or at the end of Weigh Bridge operator who issued weighment slips. He has further submitted that it is not the case of the Department that the goods were diverted elsewhere or that the appellant had actually received the goods from any other source. Most of the statements are also not reliable being not furnished by the owners, but persons who are not properly authorized. 6. He has further submitted that statements of Shri Nareshbhai Changrani, Director of the appellant company and that of the suppliers of inputs are exculpatory and hence it should be considered that the case is without sufficient evidence or justification for denial of CENVAT credit to the appellant. In support of his submission, he has referred to the judgment of this Tribunal in the case of Motabhai Iron & Steel Industries vs. C.C.E., Ahmedabad 2014 (302) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh that the quantity of the finished manufactured and cleared by the Appellant could not be manufactured without receiving the said inputs, when ample evidences are available on record, indicating non-receipt of the same. In support of his contention, he has referred to the judgment of this Tribunal in the case of Viraj Alloys Ltd. Vs. C.C.E., Thane II 2004 (177) ELT 892 (Tri-Mumbai); in Ranjeev Alloys Limited vs. C.C.E., Chandigarh 2009 (236) ELT 124 (Tri-Del.). Gyscoal Alloys Ltd. vs CCE 2014 (35) STR 199 (Guj). 8. Heard both sides and perused the records. The short question needs to be determined is: whether the appellants had correctly availed the CENVAT credit of Rs. 27,49,037/-, against the input invoices issued by two registered dealers namely, M/s Goodluck Empire and M/s Jenil Empire during the relevant period i.e. 2006-07 and 2007-08. 9. Before ascertaining the facts and scrutiny of the evidences, it is worth mentioning that to avail CENVAT credit on the inputs under CENVAT Credit Rules, 2004, as laid down under Rule 3 of the said Rules, the inputs not only to be duty paid, but also must have been received and utilized in or in relation to the manufacture of final produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while availing credit. Hence, in absence of reasonable explanation on the discrepancy of the entry relating to the particular vehicles mentioned in the invoices adverse inference could be drawn in this regard. A somewhat similar view has been expressed by the Hon'ble Gujarat High Court in Gyscoal Alloys Ltd. vs CCE Ahmedabad-III 2014 (35) STR 199 (Guj.), their Lordships at para 8 observes as follows: 8. Having heard the learned counsel for the parties and having perused the documents on record, we notice that the Revenue Authorities as well as the Tribunal concurrently came to the conclusion that the assessee had indulged into availment of cenvat credit without actually receiving the goods. It was found that the goods were never received in the factory and mere entries were made. This was established through the evidence on record which showed that the vehicles supposed to have been used for transport of the goods could never have been put to such use. The Revenue Authorities relied on the RTO reports which showed that the vehicles in question were of two wheelers and auto-rickshaws which allegedly transported tonnes of goods to the factory premises of the assessee. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old in the market as the same was found to be inferior and not possible for use in manufacturing activity. Even this was so, the assessee was required to reverse the cenvat credit which the assessee admittedly did not do. The Authority, therefore, rightly invoked the extended period of limitation. 12. The contention of the ld. Advocate for the appellants referring to various the decisions of this Tribunal is that further corroborative evidence is required to establish that the inputs have not been received in the factory of the appellant. I do not find merit in the contention of the ld. Advocate , inasmuch as the facts of each case rest on the evidence collected in that case. On a thorough scrutiny/analysis of the documentary evidence as well as oral evidence it is to be ascertained the credibility of oral evidence vis-`-vis the documentary evidence. In the present case, it cannot be lost sight of the fact that the appellants are operating under self-assessment scheme and they should be aware of the facts mentioned in the input invoices, which are relevant to avail of credit of the duty mentioned in the said invoices. Had it been a situation where credit of the duty paid is admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises of the dealers to the factory or the vehicles were not in good condition. The Ld. Advocate for the appellant vehemently argued that most of the statements were given by the persons who were not the owners of the vehicles, nor properly authorized by the owners of the vehicles in furnishing such statements. It is their argument that , therefore, merely on the basis of statements of the vehicle owners, it cannot be concluded that the vehicles were not used for transportation of the goods. I find force in the contention of the Ld. Advocate for the appellant. Except few statements of vehicle owners/representatives, the competence of the said persons to furnish such statement also being in dispute, and in absence of other corroborative evidence placed by the Revenue, to substantiate the allegation that the quantity of inputs mentioned in the invoices, where the capability of the vehicle mentioned in these invoices are not disputed, it is difficult to sustain the allegation of non receipt of the inputs against these set of input invoices. 14. In nutshell, denial of credit of Rs. 18,27,413/- is hereby confirmed with interest and penalty and CENVAT Credit of Rs. 9,21,624/- is admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
