TMI Blog2019 (2) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid invoices. The documents on record shows that the inputs as received by appellant were first purchased by M/s UAPL from M/s Moral Alloys based at Bhiwadi and the GR in that respect were also produced on record. The Order under challenge has ignored those GRs. There is nothing apparent in the Order about the vehicle nos. mentioned on the said GRs - There is no other evidence on record to support the finding that the vehicle nos. as mentioned in the invoices issued by Shri Amit Gupta were LPG tankers, JCP Machines, auto richshaw rather perusal of the invoices issued by Shri Amit Gupta shows that no vehicle No. is mentioned on those invoices. The findings are based upon the third party evidence without even giving the opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant : Ms. Priyanka Goel, Advocate For the Respondent : Mr. K. Poddar, DR ORDER PER : RACHNA GUPTA The appellants herein are engaged in manufacture of High Crome Grinding Media Balls and Alloy Steel Castings. Department on the basis of specific intelligence from the officers of DGCEI, New Delhi searched the premises of M/s Progressive Alloys Pvt Ltd operated by Shri Amit Gupta, the Director thereof, and other associate registered dealers namely Forwarder Minerals and Metals Pvt. Ltd., M/s Unnati Alloys Pvt Ltd (UAPL in short), M/s Moral Alloys Pvt Ltd (MAPL in short) and M/s Brilliant Metals Pvt Ltd and found that they are passing on inadmissible cenvat credit on the cenvatable invoices of non ferrous metals to the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to cross examine the witnesses based on whose statement the recovery was proposed against the appellant. It is further submitted that the appellant had provided the documents as that of RG-3 register, ledger accounts qua M/s UAPL and the bank statements to prove that the appellant has duly purchased non ferrous metal i.e. nickel, cobalt as raw material from the appellant. It is further mentioned that the final product i.e. the High Crome Grinding Media Balls duly being manufactured out of the said raw material have even been cleared against the duty. There is no denial on the part of the Department qua the same. Resultantly, the findings of the authorities below are absolutely wrong being in ignorance of relevant documentary ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to not to be applicable for the present case for want of the evidence. Appeal is prayed to be dismissed. 5. After hearing both the parties and perusing the entire record, I observe and hold as follows: 5.1 The impugned SCN which the impugned adjudication alleged that the supplier of inputs to the appellant i.e. the M/s UAPL, Jaipur has not supplied the said inputs namely nickel cathodes to the appellant but has simply raised the invoices to facilitate appellant to avail cenvat credit in respect of duty paid on said inputs without receipt of said inputs to the appellants factory. Perusal of SCN itself shows that vide nine invoices, almost 9,000 Kgs of nickel cathodes has been delivered by M/s UAPL to the appellant. The SCN further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehicle No. is mentioned on those invoices. I am therefore of the opinion that while announcing the Order under challenge, Commissioner(Appeals) has not only ignored the documentary evidence produced by the appellant, but also their bonafide submission about reason of having no GR. 5.3 It is the fact of the Order under challenge that the findings are based upon the third party evidence without even giving the opportunity to the appellant to confront the evidence recovered from a third party, but against the appellant. The opportunity of cross examination is given under the law as a means of fair trial because it is cross examination only vide which the party gets the opportunity to confront the evidence produced against it. In absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal that there is no denial of the Department about appellant clearing its final product as prepared from Nickel cathode, the raw material purchased on UAPL after due payment of excise duty. Thus, there remains no case of evasion of duty, question of malafide intent does not at all arises. Resultantly, the Department could not have invoked proviso to Section 73(3) of Central Excise Act, 1944. As a result, SCN dated 18.11.2016 proposing the demand for the period 2012-13 is held to be barred by time. 6. Resultantly, the findings of the Order under challenge confirming the demand alongwith interest and the penalty of equal amount rather are barred by time and are held not sustainable. Accordingly, the Order under challenge is set aside a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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