TMI Blog2020 (11) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer has clarified that their head office was at Bentinck Street and this was duly indicated in all the disputed invoices. The department has not denied the existence of the dealer at the Bentinck Street address - Hence, the material available on record can at most arouse suspicion, but suspicion, however strong, cannot replace proof/evidence. The department has made no enquiries to ascertain whether the disputed quantity of LAM Coke had been received in the appellants factory or not. A proper stock-taking would have revealed the true picture. But no such evidence is there. Hence, it has to be accepted that the disputed quantity of LAM Coke was actually received in the factory - The department did not also make any enquiry to determine whether the quantity of finished goods manufactured by the appellants was consistent with the consumption of the disputed quantity of inputs. The appellants had provided the Railway Receipts (RR s) under cover of which the inputs had come. The disputed invoices have crossreferences of the corresponding RR s. The department made no efforts to verify the genuineness of the RR s - Hence, it cannot be said that the invoices received in the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said LAM coke. He confirmed that the LAM coke had come by rail up to the siding located within their factory premises and thereafter they were transported by trucks belonging to their transporter, M/s Silverstone Infra Projects Pvt. Ltd, to the actual place of storage. Shri Mohaptatra also intimated that these consignments were accompanied by Railway Receipts (RR s) as well as duty paying documents of the registered dealer, on the basis of which they had taken Cenvat credit. He also clarified that they had also made full payment to the supplier/dealer towards the purchases through proper banking channels and to the transporter against the transportation. 4. During the investigations the department also recorded the statement of Shri Sanjay Banthia, authorized signatory of a third party, M/s Concast Bengal Industries Ltd, on 8.11.2016 wherein he, inter alia, accepted availment of Cenvat credit on fictitious invoices generated by M/s Dankuni Steel Ltd, without any accompanying goods. 5. The department also recorded the statement of Shri Madhusudan Saha, Director of M/s Silverstone Infra Projects Pvt. Ltd., on 22.3.2017, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efforts either to contact the owners of the property or the landlord to verify the contentions of M/s Dankuni Steels Ltd. Shri Sanjay Surekha had also clarified in his statement that they did possess a trade licence from the Municipal Corporation in the name of their head office which was at 8, Bentinck Street, Kolkata. The certificate of the Municipal Commissioner nowhere stated that a company by the name of M/s Dankuni Steels Ltd. did not exist at the address reflected in the invoices. 9.4 As regards the letter dated 18.10.2013 of the Postal authorities, it was submitted that though the last invoice during the disputed period is of April 2012 , the letter of the postal authorities is of October, 2013, which is one and a half years later. It is quite possible that the trader could have either shifted his operations to another place or would have closed down his business from that address. In his statement dated 11.7.2014, Shri Sanjay Surekha, MD of Dankuni Steels Ltd, had contested the report dated 18.10.2013 of the postal authorities and had requested the department to verify the premises by deputing someone to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkit Kapoor v. Commissioner of Customs (Port), Kolkata [2018 (362) E.L.T. 401 (Cal.); x) Nirmal Seeds Pvt. Ltd. v. Union of India [2017 (350) E.L.T. 486 (Bom.)]; xi) K. Srinivasulu v. Commissioner of Customs, Chennai-III [2017 (345) E.L.T. 477 (Mad.)]; xii) HIM Logistics Pvt. Ltd. v. Principal Commissioner of Customs [2016 (336) E.L.T. 15 (Del.)]; xiii) G-Tech Industries Vs. Union of India, reported at 2016 (339) ELT (P H) xiv) HI Tech Abrasives Ltd. Vs. Commissioner of Central Excise Customs, Raipur, reported at 2018 (362) ELT 961 (Chhattisgarh) xv) Commissioner of Central Excise, Delhi-1 Vs. Kuber Tobacco India Ltd, reported at 2016 (338) ELT 113 (Tri-Del.). 9.8 If one company admits to having received only invoices from a registered trader without accompanying goods, it does not automatically mean that the same modus-operandi was adopted by all buyers of raw materials from the same supplier. [(1966) 17 STC 465- State of Kerala vs C. Velukutty]. Evidence is required to be produced in each case. 9.9 There is no evidence to show that the dealers register, in Form RG-23D, was ever scrutinized by the department to ascerta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Modvatable/Cenvatable goods directly from the supplier/manufacturer to the buyer. There are a number of judgments also in support of this. 9.13 The existence of the company itself ( though at their registered address at Bentick Street, Kolkata ) has not been denied by the department. In that case cenvat credit cannot be denied if these goods were actually received in the factory of the Appellants and utilized in the manufacture of duty paid finished goods. 9.14 The department did not conduct any stock taking of LAM Coke at the factory premises of the Appellants to verify as to whether the stocks were consistent with the quantity claimed to have been received by Appellants . If only invoices had been issued by Dankuni Steel Ltd, without accompanying goods, stock taking would have revealed a shortage of 11460.460 MTs of LAM Coke. There is no evidence of this. 9.15 The department also did not carry out any analysis / study as to whether the quantity of finished goods ( Pig Iron/Hot Metal) produced by the Appellants, during the relevant period, was consistent with the claim of the Appellants regarding receipt of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud, collusion, willful misstatement or suppression of facts by the appellants. 9.22 In view of the above, the department has not been able to make out a case for denial of Cenvat Credit of ₹ 1,28,39,142/- in respect of inputs. 9.23 The inputs which came to the railway siding in the appellants factory premises were further transported within the factory premises to the storage area by trucks belonging to M/s Silverstone Infra Projects Pvt. Ltd. The Service Tax of ₹ 1,30,534/- paid to the transporter and borne by the appellants is clearly available as Cenvat Credits to the appellants. 10. The learned Authorized Representative reiterated the findings of the Appellate order and submitted that the appellants had knowingly availed credit on the basis of fake invoices. He urged that the appeals be rejected. 11. Heard both sides through video conferencing and perused the appeal records. 12. We find that the main basis of denying the Cenvat credit to the appellants are the two letters received by the department, one from the Municipal Commissioner and the other from the Postal authorities. The letter from the Munic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants was consistent with the consumption of the disputed quantity of inputs. 20. In the absence of the above it has to be presumed that the disputed quantity of LAM Coke was duly received in the appellants factory and used in the manufacture of finished goods. 21. The appellants had provided the Railway Receipts (RR s) under cover of which the inputs had come. The disputed invoices have crossreferences of the corresponding RR s. The department made no efforts to verify the genuineness of the RR s. 22. Hence, it cannot be said that the invoices received in the appellants factory were not accompanied by duty paid goods. 23. In any case, it is now established law that the mere nonexistence of a dealer at the registered premises will not disentitle the recipient from availing cenvat credit. The case of Commissioner Central Excise Bangalore-1 vs Bhuwalika Steel Industries Ltd. 2012 (277) ELT 153 (Kar) may be referred to in this regard. Relevant extracts from the judgment are reproduced below:- 3 .. The material on record clearly discloses that the dealer who has issued the invoice has shifted the premises and that the premises from where the invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X
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