TMI Blog2019 (6) TMI 1512X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to deny CENVAT credit has not even been relied in the SCN and hence cannot be entered into evidence as required under Section 9D of the Central Excise Act and therefore no credence can be given to the said statement to decide the case against the appellant - It is a settled legal position that onus to prove the allegations is on the department with corroborative evidence which has not been done in the present case. Moreover, from the records, it is amply clear that the statements made by Sri Gupta of SPPL specifically pertained to the invoices issued by them to one M/s. Akhsay Steel which in any case, cannot deprive the appellant assessee herein of their legal entitlement of CENVAT credit. Appeal allowed - decided in favor of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices which was being claimed as CENVAT credit by the appellant. The case of the Revenue is that the appellant in collusion with SPPL availed irregular credit of ₹ 79,93,222/- inasmuch as no service has been rendered by the said SPPL. Proceeding was initiated by way of Show Cause Notice dated 31.03.2016. Sri Prakash Khemani, Director of the appellant company was also made co-noticee to propose penalty under Rule 26(2) of the Central Excise Rules, 2002 (Excise Rules), with the allegation that he played a central role in fabricating the documents to avail wrong credit on the basis of invoices issued by SPPL. SPPL was also made a co-noticee in the aforesaid Show Cause Notice to propose penalty under Rule 26(2) of the Excise Rules. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement of Sri Gupta was only in respect of SPPL s transactions with M/s.Akshay Steel Works Pvt.Ltd. and no reference was made to the appellant assessee (Suraj Logistics Pvt.Ltd. as a beneficiary of any transaction. The Ld.Addl.Commissioner also observed that the Central Excise Service Tax authorities need to give specific and independent findings before denying the credit specifically when all documents are in place and that credit cannot be denied merely based on the income tax assessment orders. 4. In the appeal filed by the Revenue, the Ld.Commissioner (Appeals), has categorically observed in para 7.3 of the impugned order and admitted that the statement of Sri Rajjit Gupta has not been made a Relied Upon Document and also no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istics (the appellant herein) was not a party and therefore, the availment of credit in the hands of appellant is not proper. They relied upon the decision of this Tribunal in the case of Supreme Cylinders Ltd. v. CCE Jaipur 2016 (332) ELT 373(Tri-Del) as well as in the case of CCE Raipur vs. Saini Industries Ltd. 2014 (304) ELT 282 (Tri-Del) wherein it has been held that the Income tax assessment order is not relevant without corroborative and independent evidence. He also submitted that the statement of Sri Rajjit Gupta of SPPL is not a relied upon document in this case and hence not examined under Section 9D of the Central Excise Act and therefore no credence can be given to said statements. They relied on the decision in the case of G.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not received any service. The statement of Sri Gupta, on which the department has placed heavy reliance to deny CENVAT credit has not even been relied in the SCN and hence cannot be entered into evidence as required under Section 9D of the Central Excise Act and therefore no credence can be given to the said statement to decide the case against the appellant. It is a settled legal position that onus to prove the allegations is on the department with corroborative evidence which has not been done in the present case. The Tribunal in CCE vs. Dhawan Steel Industries 2015 (324) ELT 169 (Tri-Del) has held when no investigation was conducted at the end of the manufacturer-supplier as well as transporter of the goods and the case has been made a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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