TMI Blog2019 (6) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... shown in the books of account of M/s Ruby Steels were not delivered to M/s Nidhi Auto and only invoices were given then where did such huge quantity of inputs gone and to whom and who was the transporter. Further, revenue also did not investigate as to if 9112.500 MT of inputs were not received by M/s Nidhi Auto then from where M/s Nidhi Auto has procured inputs for manufacture of goods which were cleared on payment of duty. Impugned order not sustainable - Appeal allowed - decided in favor of appellant. - Excise Appeal Nos. 70145-70147 & 70154-70156 of 2017-[DB] - FINAL ORDER NOs. 71086-71091/2019 - Dated:- 18-6-2019 - SMT. ARCHANA WADHWA, MEMBER (JUDICIAL) AND MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri Somesh Arora Shri Ranvir Singh, Advocates for the Appellant Shri Gyanendra Kumar Tripathi, Deputy Commissioner, Authorised Representative for the Respondent ORDER The above stated six appeals are taken together for disposal since all of them are arising out of a common impugned Order-in-Original No. 27/Pr. Commissioner/Noida-I/2016-17 dated 22/12/2016 passed by Commissioner of Central Excise, Noida-I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wledge of revenue that each and every entry of transportation was matching with invoices which were entered in ledger account at Sl. No. 69 and no entry of transportation of goods were found in respect of the records of ledger accounts at Sr. No.70. To carry out further investigations statement of Shri Kuldeep Singh Parmar was recorded on 29.02.2015. Shri Kuldeep Singh Parmar was director of M/s Nidhi Auto. On 08.04.2015 statement of Shri Kunj Bihari Thakur, Accountant of M/s Nidhi Auto was recorded. On the basis of above stated investigations, it appeared to revenue that M/s Nidhi Auto was engaged in fraudulent availment of Cenvat credit without receipt of goods only on the basis of invoices issued by M/s Ruby Steels and entered into ledger account at Sl. No.70. Therefore, it appeared to revenue that M/s Nidhi Auto availed inadmissible Cenvat credit of around ₹ 4.66 crores during the period from April, 2011 to January, 2015 without receipt of inputs on the basis of invoices issued by M/s Ruby Steels. Therefore, appellants were issued with a show cause notice dated 04.01.2016 through which it was proposed to disallow Cenvat credit of around ₹ 4.66 crores under Rule 14 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Original Adjudicating Authority that the evidence in the form of statement of Shri Arun Jain, Proprietor was available only in respect of 5 months and on the basis of statement for 5 months allegations for 5 years cannot be levied. Further, the appellants also sought cross examination of all those whose statements were relied upon for issuance of show cause notice and relied upon ruling by Hon ble Allahabad High Court in the case of Commissioner of Central Excise, Meerut-I Vs Parmarth Iron Pvt. Ltd. reported at 2010 (260) ELT 514 (All.). They further submitted that Shri Kuldeep Singh Parmar Director of the appellant retracted in his statement recorded on 29.09.2015 by filing an affidavit on 30.09.2015 duly notarized and therefore, the statement dated 29.09.2015 cannot be relied upon. The learned Original Adjudicating Authority has taken into consideration the evidences at ledger account at Sl. No.69 and Sl. No. 70, diary received from the residences of Shri Sanjay Agarwal and Shri Sanjeev Agarwal partner of M/s Nidhi Auto and statement of Shri Arun Jain and concluded that appellant did not received inputs and they only received the invoices and availed the inadmissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived back by M/s Ruby Steels from M/s Nidhi Auto. g) Documentary evidence at the end of M/s Ruby Steels and M/s Nidhi Auto cannot be displaced on the basis of unauthenticated statements not tested on the touch stone of cross examination. h) Revenue failed to compute total inputs received by M/s Nidhi Auto during the period from April, 2011 to 03.01.2015. During the period from April, 2011 to 03.01.2015 M/s Nidhi Auto purchased total 18123.67 MT of inputs from M/s Ruby Steels on the basis of valid invoices and M/s Ruby Steels had paid VAT on the same and the receipt of inputs was properly recorded in RG-23 records by M/s Nidhi Auto and that total quantity mentioned in two ledger at Sl. No.69 and 70 was equal to total quantity of inputs purchased from M/s Ruby Steels. The total quantity stated in ledger at Sl. No.69 was 9011.170 MT and the same in other ledger was 9112.500 MT. i) Revenue has not conducted any investigation on 9112.500 MT of inputs recorded in ledger at Sl. No.70 dispatched by M/s Ruby Steels and allegedly not received by M/s Nidhi Auto. In respect of such huge quantity revenue has not identified, who were the transporters a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d then such diary is not admissible evidence. In the present case, we find that the author of the diary recovered at the residence of the partner of M/s Ruby Steels was not identified and his statement was not recorded and therefore, the diary recovered was not admissible evidence. Further, we also note that it was alleged that M/s Nidhi Auto was maintaining parallel ledgers whereas we find that M/s Nidhi Auto was maintaining two ledgers which was in the regular course of business and that the goods entered were tallying with the total quantity received by them in both the ledgers put together. Further, revenue could not exhibit any discrepancy of total inputs reflected in two ledgers put together with entries of inputs in RG-23 records. Further, we note that revenue has not investigated as to if 9112.500 MT of quantity of inputs shown in the books of account of M/s Ruby Steels were not delivered to M/s Nidhi Auto and only invoices were given then where did such huge quantity of inputs gone and to whom and who was the transporter. Further, revenue also did not investigate as to if 9112.500 MT of inputs were not received by M/s Nidhi Auto then from where M/s Nidhi Auto has procured ..... X X X X Extracts X X X X X X X X Extracts X X X X
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