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TMI Blog2018 (5) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... ire 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 19.04.2011. 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 Devilal Bherulal Rathi, Director of M/s Mangalam Alloys 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the vehicles/authorized persons of the vehicle owners are totally misplaced inasmuch as 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination of Shri Govindbhai Chaturbhai Patel, owner of the vehicle, the said witnesses has confirmed that they have not transported the inputs to the factory of the appellant as they do not operate in the said route. In his statement and affidavit the proprietor of Sitara Weigh Bridge has categorically admitted that they had never issued handwritten weighment slips and the vehicles mentioned in the said slips had never come to their weighment bridge. It is his contention that the statements are reliable piece of evidence and ought to be accepted since the documentary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpire. The director of the appellant Shri Devilal Bherulal Rathi in his statement informed that he has no answer for such discrepancy in the invoices and further stated the generally their accounts department do not concentrate upon vehicle numbers since they are more concerned about material than anything else. On analysis of the said statements which had not been retracted nor any contrary evidence that has been placed by the appellants, I do not see any reason to discard the said statements only on the ground that these statements are not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the contrary, we notice that there was considerable evidence on record to come to such a conclusion. As noted, the report of the RTO authority established that the numbers of the vehicles through which the goods were said to have been transported were two wheelers and rickshaws in which such heavily weighing goods could not ever have been transported. The assessee did not dispute the RTO report, but only suggested that the numbers of the vehicles in their registers would have been wrongly noted. We are afraid, such a flimsy explanation cannot 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, in such probable situation, the burden heavily lies on the assesse to establish the receipt of goods in their factory. Thus, 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 Rs. 5,89,667/- had not been received in the factory and the credit was availed only on the input invoices. 13. As regards, the credit of Rs. 13,60,821/- availed against 39 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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