TMI Blog2018 (5) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... t the quantity of inputs mentioned in the invoices have been received in the factory and utilized in the manufacture of finished goods by adducing positive evidence - in the present circumstance a prudent inference that could be arrived at is that the quantity of inputs mentioned in the 12 invoices involving a total credit of ₹ 5,89,667/- had not been received in the factory and the credit was availed only on the input invoices. The allegation of the department is that even though the vehicles mentioned in the respective invoices were not Auto Rickshaws, Chakdas etc., but in the statements of respective owners of the vehicles, it has been stated that they had never visited the route used for transferring/transporting the inputs from the premises of the dealers to the factory or the vehicles were not in good condition - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 Mangalam Alloys Limited, have correctly availed CENVAT credit on the invoices issued by the registered dealers namely, M/s Goodluck Empire and M/s Jenil Empire during the period 2006-07 and 2007-08. It is his contention that the inputs have been duly received and accounted for in their statutory records and consumed/utilized in the manufacture of final product in the factory of the appellants, and the final products were later cleared on payment of duty. Ld. Advocate further submitted that the authorities below on the basis of evidences of the authorized persons of the vehicle owners, whose vehicle numbers were mentioned in the invoices stated to have not ferried their vehicle, report of the RTO authority that the vehicles shown in the respective invoices were incapable of carrying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Further, on the allegation of non-receipt of inputs as the weighment slips were hand written, the Ld. Advocate has submitted that even though the Proprietor of Sitaram Weigh Shri Bholabhai Chauhan in his Statement 14.5.2010 and 28.12.2010 had stated that they had issued only computerized weighment slips and not handwritten slips, however, in his cross-examination admitted that their employees issued hand written issue slips. 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 69 (Tri-Ahmd.); C.C.E., Raigad vs. Jay Iron St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary evidence i.e. input invoices for availing credit are not proper in this case as entries made thereunder are false and not genuine. He has also submitted that it is not necessary to establish 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 ₹ 45,66,544/-, 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 CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consonance with the records maintained by the Appellant in their factory. On the contrary, these statements are taken only for the purpose of scrutiny/ ascertaining the genuineness of the transaction recorded in the books of accounts 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be accepted. Discrepancies were noted not in one or two vehicles, but in large number of cases. Further, the assessee in order to explain away the short-fall in the physical stock, contended that the goods previously received were sold 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the respective invoices were not Auto Rickshaws, Chakdas etc., but in the statements of respective owners of the vehicles, it has been stated that they had never visited the route used for transferring/transporting the inputs from the premises 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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