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TMI Blog2018 (6) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... such movement of FO, LDO, CBFs which has been not found entered at ICC set up by the sales tax department of Punjab Government and some of the transporter also admitted that they have not transported the said furnace oil to the factory premises of the assessee and one Shri. kamal Gupta have stated that they never transported any material for M/s Lakra Oil Trading (LOTC) and entries made therein in also suggest that there has been a fake transaction. On the basis of the said investigation, the show cause notice dated 24.04.2006 was issued to the assessee to deny cenvat credit on furnace oil alleging that the same has not been actually receipt in their factory. The matter was adjudicated and during the course of adjudication various persons were cross examined and during the course of cross examination, the persons have admitted that they have transported the goods to M/s Nandan Auto Tech Pvt. Ltd.. A separate proceedings was also initiated against the assessee for alleged shortage of stock found during the course of investigation but the proceedings against the assessee has been dropped by the Ld. Commissioner (A) vide order dated 31.03.2016, thereafter, consideration of various ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately at the first available opportunity. The fact that the statement of Shri. G.C. Arya is false borne out by the fact that though he has given the names and addresses of the parties to whom the diverted FO was allegedly sold by M/s APPL, however no confirmation has been obtained by the Department from any of these parties that they have received any goods from M/s APPL without any invoice No. such goods allegedly being transported without invoice by M/s APPL have been intercepted by any Government Department at any stage and no further corroborative evidence has been produced on record and the said statement of Shri. G.C. Arya although relied upon but no cross examination of Shri. G.C. Arya was granted, therefore, the same cannot be admissible evidences for confirmation of demand. 5. With regard to demand of duty of Rs. 1,01,048/- It is his submissions that the vehicles numbers mentioned on some of the invoices on which cenvat credit was availed by M/s Nandan were not tankers but the other vehicles. However, admittedly a large number of the vehicles were found to be tankers only. In those cases, where vehicle nos. were found to be of vehicles other than tankers, the number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reliance can be placed on the information received from the ICCs and the receipts of inputs by M/s Nandan stands established, therefore, cenvat credit cannot be denied. 8. It is his submissions that the proceedings were also initiated by the Central Excise Department against M/s Adhunik Alloys Ltd., where search was conducted on the same date and show cause notice was issued to them on the same allegation of non-receipt of furnace oil and reliance was placed on the same statements of the some of the persons as are relied upon in the show cause notice issued in the said case vide Final Order No. 238-242/2016-CHD dated 31.03.2016, this Tribunal has allowed the cenvat credit on furnace oil. Therefore, the demand against the assessee is not sustainable. Further, it is his submissions that the Revenue has taken the ground that the same adjudicating authority had vide order dated 30.03.2007 confirmed the demand of duty against M/s Garg Industries ltd., therefore, the impugned order qua dropping the demand is to be set aside is not sustainable. 9. As in the case of M/s Garg Industries ltd. this Tribunal vide its Final Order No. 431 to 438/2007-EX dated 31.03.2007, remanded the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to establish that the goods which are entering in the Punjab have suffered VAT/C. Sales Tax/ Sales Tax. This fact has been certified by the concern Excise Officer Ludhiana by certifying that the appellant has suffered CST/ST/VAT on the invoices in question. Therefore, merely, the vehicles in question were not entered at ICC does not dis-entitle to the appellant to avail cenvat credit on the inputs in question. As the appellant has produced the certificate issued by Excise & Taxation Officer of Punjab therefore, the appellant cannot be denial cenvat credit merely, on the ground that vehicle number have not crossed at ICC. I further find that in the case of Hitkari Industries Ltd. - 2008(226) ELT 583 (Tri. Del.) and Himalayan Pipe Industries- 2013 (293) ELT 739 (Tri. Del.) this tribunal has also observed information revealed from Sales Tax Department are not reliable as the appellant has produced certain documents which show with the transaction have been declared by the appellant. Admittedly, in the case the appellant has produced the certificate issued by the Excise Taxation Department, certifying that these goods have been received in their factory, therefore, the cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of M/s Gupta Transporter Company, who has stated that never transported any material for LOTC but appellant sought cross examination of Shri. Kamal Gupta. The said cross examination was not granted to the assessee. In that circumstances, the statement given by Shri. Kamal Gupta is inconclusive and the same cannot be relied upon. Therefore, the demand of Rs. 97,139/-is set aside. 18. With regard to the demand of Rs. 1,75,350/- that has been confirmed on the basis of the statement of Shri. G.C. Arya of M/s APPL. The said statement was retracted by Shri. G.C Arya at first available opportunity and no cross examination was granted to the asssessee of Shri. G.C. Arya, therefore, the statement recorded of Shri. G.C. Arya have no relevance to deny cenvat credit as the same has not been tested by way of cross examination, therefore, the demand of Rs. 1,75,350/- is also set aside. 19. With regard to the demand of Rs. 1,01,048/-which has been confirmed on the ground that the vehicles which have been mentioned in the invoices are not capable of transportation of goods in question as the vehicles are not tankers. Admittedly, without tankers, the impugned goods cannot be transported an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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