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TMI Blog2018 (7) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... etor. On enquiry at the premises of M/s. Shyamsons India and the documents recovered thereon and the statement of its Proprietor, it appears that the appellant company M/s. Mittal Iron Foundry Private Limited received the duty paid inputs from M/s. Shyam Sons India. It was found that the Proprietor of M/s. Shyam Sons India procured the goods from the Manufacturer and diverted Pig Iron to some other places other than factory of such downstream manufacturers. The name of the appellant company was figured in the exercise book maintained by the Proprietor of M/s. Shyam Sons India. Accordingly, the DGCEI summoned the Director of the appellant company and recorded the statement dated 12.07.2012. A Show Cause Notice dated 26.07.2012 was issued to the appellant company, Shri Vijay Kumar Agarwal, Director of the appellant company and Mr. Satya Narayan Dey, Proprietor of M/s. Shyam Sons India. It has been alleged that the appellant company availed Cenvat Credit on the basis of the Invoices issued by the Manufacturer without bringing the inputs in their factory. 2. The Adjudicating authority confirmed the demand on wrongly availed Cenvat Credit of Rs. 9.69,053.00 along with interest and impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e they have no business or any transaction with Shri Satya Narayan Dey, they have nothing to comment on his statement and records maintained by him. It is seen from the Show Cause Notice that DGCEI Officers made enquiry to the Transporter, CONCOR and various other places. The Assistant Supervisor of CONCOR, Amulya Kant Choubey in his statement dated 28.06.2010 stated that 27.5 M.T. Presently enlarged to 28 M.T. is the maximum weight of Iron & Steel products that can be contained in the CONCOR Container. It was found that most of the Consignments are weighing 27MT. During the Investigation the Statement of Shri Amulya Kumar Choubey was shown to Mr. Vijay Kumar Agarwal, Director of the appellant company who in his statement dated 12.07.2012 stated that the observation of Shri Amulya Kant Choubey is his own and they have no relation with Shri Choubey. The main contention of the appellant company is that they have received the goods at their factory accompanied with Central Excise Invoices. They entered the impugned goods in their Cenvat Account and also shown its consumption. The Department had not made any investigation against the Supplier of the goods. It is contended by the Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the appellant No. 1, except the mentioning of the name of the appellant No. 1, in his exercise book. In my considered view, the appellant No. 1 & 2 cannot be impleaded merely on the basis that the name of the appellant is mentioned in the notebook of appellant No. 3, unless, there is any corroborative evidence thereon. The case was made out against the appellant No. 1 & 2 on the basis of weight consignment of 27.5 M.T./28 M.T. as loaded in the container of CONCOR. It is revealed from the statement of appellant no. 3, the entire transaction was made in cash but the Investigating Officer did not recover any cash and other evidence from the appellant no. 1 company. Further records and documents as placed by the appellant no. 1 in support of the contention that the impugned goods were received by them and used in the manufacture of final product cannot be brushed aside merely on the basis of the statement of appellant no 3 and its exercise book. In any event, the weight of the consignments as mentioned in the invoices of the appellant cannot be construed that the said material are related to the consignment of the CONCOR. 8. I find that the Investigating officer failed to recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latest decision in the case of Commissioner of Central Excise, Lucknow Vs. M/s. Premier Alloys Ltd. [2015 (7) TMI 1173-CESTAT, New Delhi] where in the Tribunal dealt with the supplies made by the same dealer M/s. M.K. Steels. The Revenue in that case refused to deny the credit to the assessee, based upon the result of the same investigations conducted at the end of M/s. M.K. Steels and on the basis of the same evidence relied upon by them in the present case. After taking into consideration the entire facts and circumstances, the Tribunal came to a finding that the assessee in fact in had received the goods covered under the disputed invoices in as much as Revenue has not brought any tangible evidence to prove non-receipt of the goods by the respondent. The Tribunal further observed that the same investigation at the end of M/s. M.K. Steels were the subject matter of the Tribunal decision in the case of Juhi Alloys Ltd. Which stands upheld by the Allahabad High Court by observing so that the appeal filed by the Revenue in that case was rejected. 11. The facts of the above decision in the case of juhi Alloys Ltd. And M/s. Premier Alloys Ltd. Are fully applicable in the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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