TMI Blog2019 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... egation is that there is difference in the description of the goods. This has been plausibly explained by AVCL as well as Shri T.K. Sundaram. It is also to be noted that the AVCL uses all the input only after through lab testing. In such a case, the allegation that they have not received inputs or that they have differently described the inputs etc., do not seem to be probable at all. Needless to say that when finished products are exported, AVCL would not be making any gain by indulging in such fraudulent availment of credit, as they cannot use such credit. The department has failed to establish fraudulent availement of credit on the part of AVCL - demand do not sustain - appeal allowed - decided in favor of appellant. - E/00295/2011, E/00296/2011, E/00311-00313/2011 - FINAL ORDER Nos. 42815-42819/2018 - Dated:- 13-11-2018 - Smt. Sulekha Beevi C.S, Judicial Member And Shri Madhu Mohan Damodhar, Technical Member For the Appellant: S/Shri J. Shankar Raman, Adv., M. Saravanan, Cons. For the Respondent: Shri A. Cletus, ADC (AR) ORDER Per Bench The issue involved in all these appeals being connected and similar, they were heard together and are dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 534 was parked inside the factory premises. The driver of the vehicle Shri Anbu informed that he had transported 9830 kgs. of MS Scrap from Hosur to Coimbatore and produced the Invoice No. 319, dated 20.01.007 of M/s. Suresh Enterprises, Coimbatore. He also produced weighment slips of even dated issued by M/s. Venkateswar Enterprises, Hosur. On perusal of invoice, it was noticed that the manufacturer name was mentioned as M/s. BHEL, Ranipet and the first stage dealer's was mentioned as M/s. Gurudev Enterprises, Chennai . The driver stated that the consignment was unloaded at the premises of AVCL. On examination, the description of the materials was in conformity with the document. However, there were discrepancies with regard to the origin of dispatch. From the information/statement of driver, it appeared that the MS Scrap mentioned in the invoices was actually transported from Hosur and not from Chennai as mentioned in the invoices. The goods were therefore detained under a Mahazar, dated 13.03.2007. Shri S. Kandasamy, Manager of M/s. Suresh Enterprises gave statement that the consignment of 9830 kgs. of MS Scrap was non duty paid goods received from M/s. Venkateswar Enterp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their declarations. The MS Scrap and SS Scrap will be in different forms and sizes. The appellants place orders for MS Scrap and on procurement of goods pay Central Excise duty on the same. 3.5 They were under bonafide belief that the goods supplied by the dealers are duty paid. While so, there is no justification to demand the credit on the wrong presumption that credit has been taken on non-duty paid goods. The scrap is sent to their lab for testing and only after getting confirmation from their lab, they accept the raw materials. The whole case of the department is based on statements only. Shri T. K. Sundaram of A C has stated that the officers forced him to give a statement to suit their convenience. Similarly, Shri M. Kandasamy, Manager of M/s. Suresh Enterprises also has stated that he was forced to give such statement. Other than such statements, there is no material evidence put forth by the department to show that the appellants have received non-duty paid goods in the guise of duty paid goods. 3.6 Shri T.K. Sundaram of A C has stated during cross-examination that gas cutting equipments were used by them for cutting the materials as required by the clients. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oercion. The statement was not voluntary and, therefore, cannot be relied as evidence. He prayed to set aside the penalties. 4. The learned Authorised Representative Shri A. Cletus, ADC (AR) for the Revenue supported the findings in the impugned order. He submitted that after investigation, it was brought to light that AVCL was indulging in availing fraudulent credit with the help of invoices issued by A C. When the officers visited the premises of AVCL, they found a lorry parked outside and on queries made to Shri Anbu, driver of the lorry, he had informed that 9,830 kgs. of MS Scrap was transported from Hosur to AVCL s premises by invoice dated 20.01.2007 of M/s. Suresh Enterprises, Coimbatore. The weighment slips was of Shri Venkateswar Enterprises, Hosur was produced. On verification, it was found that the goods were transported from Hosur and not from Chennai as mentioned in the invoices. Statement of Shri S. Kandasamy, Manager of M/s. Suresh Enterprises and Shri T.K. Sundaram revealed that AVCL took Cenvat Credit on the basis of invoices issued by dealer for which duty was not paid. It is usual that in Iron Steel industry, the duty paid goods received from the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given the statements under force and coercion. It is explained by Shri T.K. Sundaram that they had used gas cutting machines to cut and size the materials received from the manufacturers as required by the clients. All these would go to show that AVCL has received scrap only. The department has not put forward any invoices, which has not included Central Excise duty. The basic allegation is that there is difference in the description of the goods. This has been plausibly explained by AVCL as well as Shri T.K. Sundaram. It is also to be noted that the AVCL uses all the input only after through lab testing. In such a case, the allegation that they have not received inputs or that they have differently described the inputs etc., do not seem to be probable at all. Needless to say that when finished products are exported, AVCL would not be making any gain by indulging in such fraudulent availment of credit, as they cannot use such credit. 7. For the above reasons, we are of the considered opinion that the department has failed to establish fraudulent availement of credit on the part of AVCL. The demand of duty on this count therefore cannot sustain. Consequently, the penalty imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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