TMI Blog2018 (7) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... is also not the case of the department that the appellant have procured some unaccounted inputs to cover up the quantity of input shown in the invoices. The statement of managing director of the appellant company is exculpatory - The appellant have recorded the receipt of the goods in RG-23 part I register and payment of the same was made through cheque. The finished goods were cleared on payment of Central Excise duty. Transportation charges were also paid by account payee cheque and such payment was accounted for in the books of accounts. The clearances of all the goods from the suppliers premises was never disputed. The payment of transportation was made after deduction of TDS. All the suppliers affirmed the sale of goods and receipt of payments for such sale. There is no evidence that the inputs shown in the invoices received by the appellant were not used in the manufacture of final product. Department has not disputed the correctness of quantity manufactured by the appellant recorded in their daily stock account. The service tax payment in respect of transportation of goods also establish the transportation of goods - merely on the basis of the RTO reports, it cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port vehicle owners/ agents who have denied the transportation of goods under the concern invoices. Some weighbridge owners were also summoned and they have also denied to have weighed the goods covered under the concerned invoices and also denied the concerned weighment slips issued by them. The investigations were also carried out with the raw material suppliers mentioned in the invoices and broker of the transport vehicle. The statement of Director of the appellant Company was recorded wherein he has not disputed that the goods under the relevant input invoices were received in the factory, however as regard vehicle number, he has not explained the discrepancy. On the basis of these facts and evidence gathered, it was alleged that the appellant had availed the credit fraudulently without receipt of inputs. Accordingly, the SCN was issued which was culminated in the adjudication order whereby the demand of Cenvat credit along with interest and penalty was confirmed and a penalty under Rule 26 of Central Excise Rules, 2002 was also imposed on the Director of the appellant Sh. Vidyutbhai Vinodchandra Kapadia. Both the appellants have filed the appeal before the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat High Court reported at- Commr. Vs Motabhai Iron Steel Industries 2015 (316) ELT 374 (Guj.) Sharma Chemicals vs CCE Calcutta-II 2001 (130) ELT 271 (Tri.-Cul) He further submits that suppliers of the goods never stated that they have not supplied the goods. They stated that the transportation were arranged by the appellant. Suppliers did not dispute about the receipt of payment. He further submits that it is not the case of the department that the appellant with connivance of the suppliers diverted the goods and availed the cenvat credit based only on invoices. The case of the Revenue is that suppliers only supplied the goods which stand negated on the basis of suppliers statement. He submits that the appelant procured total 2451 consignment during the disputed period out of which only with reference to the vehicle number in respect of 101 consignments was noticed. In such a huge transaction in some of the cases the mistake in mentioning the vehicle numbers in the invoices is possible, therefore, merely on this mistake it cannot be concluded that the goods were not received by the appellant. In support he placed reliance on the following judgments. CCE Lud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs CCE 2018-TIOL-463-CESTAT-DEL A S Textiles Ltd. Vs CCE Coimbatore 2018-TIOL-1308-CESTAT-MAD 4. Ld. Counsel in his rejoinder filed by the written submission subsequent to the hearing of the case filed on 21.06.2018 wherein he submits that the judgment of Hon ble Gujarat High Court in case of Gyscoal Alloys Ltd. (supra) relied upon by the Revenue is not squarely applicable in the facts of the present case. As per the facts of the said case, apart from RTO report there were other ample evidences whereas in the present case there is only RTO report that too small quantity of consignments as against the huge number of consignments. In the present case, majority of statements including the statement of the director are exculpatory wherein it was stated that the goods were received therefore, the judgment in the case of Gyscoal Alloys Ltd. (supra) is not applicable in the facts of the present case. He submits that similarly in the cases relied upon by the Revenue in the case of Harsaran Dass Sita Ram, A S Textiles Ltd., Genius Electrical Electronics Pvt. Ltd. (Supra), the facts of those cases are different from the facts of the present case, therefore, the same are not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the goods under the invoices in question were booked in books of accounts. The payment against the said invoices were made through cheque, even the payment of transportation was also made by cheque. The Revenue could not bring any evidence that the goods covered under the invoices were diverted to any other place. It is also not the case of the department that the appellant have procured some unaccounted inputs to cover up the quantity of input shown in the invoices. The statement of managing director of the appellant company is exculpatory. He, in his statement, clearly stated that the inputs covered in the invoices was received by the appellant and used in the manufacture of final product. As regard, the judgments cited by the rivals, I find that each case of this nature cannot be equated with others for the reason that each case has a different facts and evidences, therefore, in the nature of cases like clandestine removal or fraudulent availment of credit, the facts and evidences have to be independently considered in each case. The Revenue has heavily relied upon Hon ble Gujarat High Court judgment in the case of Gyscoal Alloys Ltd. (supra) wherein the Hon ble High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
