TMI Blog2019 (5) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... depositions made were not corroborated with any tangible or material evidence; that they received payments from the appellant for the supplies and it could not be alleged that they had issued only their invoices. Even the slender thread of supporting evidence namely the statement of Shri G. Baskaran, Proprietor of Amman Steels, also stands neutralized. This being so, any allegation based on that sole statement will surely lose their bite. When the investigations have found discrepancies in only 10% of the invoices examined for a disputed period of 17 months between June 2005 and November 2006, that too on the basis of a sole statement which also has been subsequently denied by the person concerned, and in the absence of any samples of inputs drawn for corroboration, the allegation that appellants had received only locally procured scrap instead of CR, HR, CR sheets etc. in the input invoice, will not have any legs to stand upon. The allegations made out against the appellants have not been convincingly proved - appeal allowed - decided in favor of appellant. - Excise Appeal No.404 of 2012 - FINAL ORDER No. 40685/2019 - Dated:- 29-4-2019 - MR. MADHU MOHAN DAM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ap and thereby abetted in the offence committed by appellant; that the irregular cenvat credit availed by appellant through the invoices issued by the dealers the period from June 2005 to November, 2006 works out to ₹ 12,56,621/- in 36 invoices. Accordingly, a SCN dt. 29.09.2009 was issued to the appellant inter alia, proposing recovery of alleged ineligible cenvat credit of ₹ 12,56,621/- with interest thereon and also imposition of penalty under Rule 15 (1) and Rule 15 (2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act. The SCN also proposed imposition of penalty under Rule 25 of Central Excise Rules, 2002 on Sri Amman Steels and Sri Karpagam Steels. In adjudication, the original authority vide order dt. 30.03.2011 confirmed the proposals for recovery of amounts made in the SCN, imposed equal penalty under Rule 15 (2) of CCR 2004 read with Section 11AC ibid on appellant and imposed penalties under Rule 25 of the CCR 2004 of ₹ 40,000/- on Sri Amman Steels and ₹ 15,000/- on Sri Karpagam Steels. Out of these three notices, Coimbatore Super Alloys (P) Ltd., the appellants herein, preferred an appeal with the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) The appellants had requested for Cross Examination of Shri G.Baskaran and Shri S.Murugappan, Proprietor of M/s.Sri Karpagam Steels who had not turned up for Cross Examination. Since they had not turned up for Cross Examination their statement cannot be relied upon as an evidence against them to deny the credit, as they are not voluntary statements and has lot of discrepancies as discussed above. Once a statement is used as an evidence against any person, then such person should be given an opportunity to cross examine the person who had given statement against them. The onus is on the department to make available the person who had given the statement, for Cross examination. In this case department had failed in its duty. vi) Further the statement of Shri G.Baskaran is in English and he has signed and written his name in Tamil only, which clearly establish, he doesn t know to read, speak or understand English. It is mentioned in the statement as typed by Mr.Srinivasan Venkatesan, Inspector as deposed by deponent. When Mr.Baskaran cannot write his name itself in English, it is really surprising how he can depose in English. This apart, the dealers in their replies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are suppose to mention the same description as mentioned by their supplier. Hence the so called description difference. Reliance is placed on the decision the Hon ble Tribunal in the case of Sivamani Co. and others. Vs CCE Coimbatore 2005 (188) ELT 162. ix) In a similar case involving disputed cenvat credit on supplies of inputs made by the same dealers M/s.Amman Steels, the Tribunal in Ellen Industries and Others Vs CCE ST vide Final Order No.40462-40464/2019 dt. 12.03.2019 had allowed the appeal. So also, in the case of Sri Ranganathar Industries Pvt. Ltd. and others Vs CCE, Coimbatore Final Order No.40469-40478/2018 dated 28.02.2018 and M/s.Ultimate Alloys Pvt. Ltd and others Vs CCE, Coimbatore Final Order No.42207-42208/2018 dated 02.08.2018, the issue was held in favour of the assessee. 3. On the other hand, on behalf of Revenue, Ld. A.R Shri B. Balamurugan supports the impugned order. 4. Heard both sides. 5.1 From the facts of record, it appears, particularly from the narration in para-2 of the SCN, that in only 37 input invoices differences were noticed. In relation to all these invoices, the dates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, we are at a loss to understand how and why such basic protocols were given the go-by. Drawal of the samples of the inputs received by the appellants and their testing etc. may have revealed their actual nature and composition which would definitely have helped vindicate, or as the case may be, dispel the suspicion that was created as per the intelligence . That was not done. 5.5 On the other hand, the investigative action appears to have been restricted to verification of records for the purchase of raw materials cenvat credit account and detecting discrepancy in the records maintained by appellants between description of goods actual received as per material inward register and that furnished in the respective dealer s invoices. 5.6 In any case, during the course of the hearing, Ld. Consultant for the appellants has explained that the discrepancy as to the receipt of material in the inward register was due to the fact that appellants had mentioned commercial invoice number and date in the register whereas the department had compared the same with central excise invoices issued by dealer; that apart from this, in their register, appellants had e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supporting evidence namely the statement of Shri G. Baskaran, Proprietor of Amman Steels, also stands neutralized. This being so, any allegation based on that sole statement will surely lose their bite. 5.10 Further, in the cross examination held by the adjudicating authority on 22.03.2011, Shri N. Gopinath, Manager (Accounts) of the appellants from whom statement dt. 25.02.2009 had been recorded during investigation, clarified that the officers had noticed only commercial invoice number and date of the dealer instead of Central Excise invoice number / date and apart from this, there was no discrepancy in the material supplied by the dealer. Shri Gopinath further deposed that the department had conducted four Central Excise audits in the past and that no discrepancy in the availment of cenvat credit by appellant was pointed out by audit. It was also deposed that scrap dealers had supplied scrap to appellant and that he did not accept any bill from such dealers without receipt of any goods and denied the allegations that he had insisted for Central Excise invoice from scrap supplier for non-duty paid goods. 5.11 Earlier in these discussions, we had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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