TMI Blog2019 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... rry receipts and weighment slips. Therefore, the burden is cast upon the Revenue to prove that it was merely a paper transaction and goods were not received by the assessee-Appellant, which it failed - It is further shown that all the payments made to the First Stage Dealers are through banking channels by way of Cheques/RTGS. The Revenue has not brought on record any evidence to prove any flow back of monies. Also the assessee-Appellant have discharged its onus as required under Rule 9(1) & (5) of CCR, 2004 and as explained by Hon’ble Allahabad High Court in its decision in the case of Commissioner Excise Customs and Service Tax Vs Juhi Alloys limited [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT]. Appeal allowed in toto. - Excise Appeal Nos. 53371-53373/2018; 53433/2018 & 53741/2018 - FINAL ORDER NO. 50426 – 50430/2019 - Dated:- 27-3-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Appellant: Sh. Rohit Choudhary, Ms. Preeti Khiwani, N.R. Chandran Jitin Singhal, Adv. Respondent: Sh. H.C. Saini, AR ORDER Per Anil Choudhary : All the present appeals are filed against the Order-in-Original No. RPR/EXCUS/000/COM/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rakash Industries Ltd., while refuting the impugned order, submitted that they have purchased the raw material, namely, MS Scrap from the said First Stage Dealers on the basis of 4228 duty paid invoices along with weighment slips. For purchase of the said raw material, payments were made by way of a/c payee cheque or RTGS or through banking Channels, and necessary entries in the RG-23 Register were also made. Accordingly, Cenvat credit was availed by them by intimating the Department by filing ER-1 Returns. 5. Regarding the allegation that payments were made through cheques and in lieu thereof cash was received, the learned counsel submitted that during search by the Revenue neither any cash was recovered from the premises of the assessee-Appellant nor any corroborative evidence was obtained to substantiate the claim. It is further contended that the Revenue has not even bothered to cross-check the Bank Account(s) of any of the First Stage Dealers to prove cash withdrawal by them, which clearly demonstrates that the Revenue has proceeded on the basis of assumptions and presumptions, and came to the conclusion merely relying upon the statement of Shri Pradeep Agarwal and Rajesh A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en payments have been made in respect of those inputs on the basis of invoices, the buyer is entitled to assume that the excise duty has been/will be paid by the supplier on the excisable inputs. The buyer will be therefore entitled to claim Modvat credit on the said assumption. It would be most unreasonable and unrealistic to expect the buyer of such inputs to go and verify the accounts of the supplier or to find out from the Revenue or Central Excise whether actually duty has been paid on the inputs by the supplier. No business can be carried out like this, and the law does not expect the impossible. 9. Learned counsel further submitted that the Revenue did not make any investigation to ascertain whether the Dhanbad parties were in existence at any point of time or stopped their operation subsequently. Being non-operative does not necessarily leads to a conclusion that the said parties were never in existence as alleged by the Department. Further, the said Units have been stated to be non-operative by the Revenue much after the period under consideration for which demand is made in the show cause notice and as such it cannot be conclusively said that the Units were not do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on dated 19.04.2018, in response to following question:- Q.2. Has there been any change in the designation or position of Shri. T. M. Barwe, in Jayaswal Neco Ind.Ltd. Raipur after March, 2018? Is he superior to you in office? Ans. No. Also he is my Senior Officer. Q.3 Were you requested by any Officer of DGCEI for participating as Panch in the proceedings dated 01.10.2015. Ans. No I was not called by any officer of DGCEI. It is submitted that in view of above categorical responses given by Panch witnesses, both the said Panch Witness suffers disqualification to act as Panch Witnesses, and are not independent and/or reliable. Besides, the said persons have contradicted the Panchnama report and have stated that they mechanically signed the said report at the behest of the Revenue, as is evident from the cross examination. Further, another illegality which renders the Panchnama report as nugatory and inadmissible evidence in the eyes of law is that, the said Panch Witnesses were already present at the site and working in the nearby factory for the last about 24 years and failed to depose any factual scenario. They simply towed the lines of assumptive and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the State from whom purchases of more than ₹ 3 lac in a year have been made. Clearly and evidently the conclusion drawn by the Revenue on the basis of such VAT Returns that scrutiny of the returns revealed that no purchase of Scrap from the aforementioned five manufacturing units of Dhanbad was shown in the said returns of the aforementioned six registered dealers (reference is made to para 17.1 of the instant Show Cause Notice), can only be termed as wrong and ill-founded. By no stretch of imagination parties situation at Dhanbad, Jharkhand, could be termed as dealers within the State under the CHHATTISGARH COMMERCIAL TAX. It is further submitted that the fallacy of such presumption is writ large in as much as (i) the Revenue presumes such VAT records to be conclusive which in itself is a matter of investigation, in as much as whether such parties disclosed such matter to the VAT authorities or not; (ii) the Revenue has not questioned and as a matter of fact not even disputed in the Show Cause Notice about the availability of relevant Cenvat Credit in the accounts of the Co-Noticee Nos. 07 to 12, which Cenvat duty has in turn been passed on to the assessee- Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not disputing the fact that First Stage Dealers raised invoices giving all the particulars required to be given under the provisions of Cenvat Credit Rules in respect of material supplied to the assessee-Appellant. It is also not being disputed that the assessee-Appellant has received inputs and entered the same in their Central Excise records. The said inputs were further used by the assessee-Appellant in the manufacture of their final product which were cleared by them on payment of duty. This fact is sufficient to prove the physical entry of the inputs in the assessee-Appellant s premises. Further, the ledger account and RG-23A register maintained by the assessee-Appellant supported by weighment slips also prove the receipt of the goods. During the course of arguments before this Tribunal, the assessee-Appellant also produced the invoices against which they have availed the Cenvat Credit along with supporting documents including lorry receipts and weighment slips. Therefore, the burden is cast upon the Revenue to prove that it was merely a paper transaction and goods were not received by the assessee-Appellant, which it failed. 17. It is further shown that all the payments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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