TMI Blog2019 (9) TMI 1588X X X X Extracts X X X X X X X X Extracts X X X X ..... company, Shri Shiv Kumar Garg maintained the stand as they have physically received the goods that the same were entered in RG-23A Part I and II register, and the payments for inputs were made through letter of credit, a copy of which is provided to the department - the appellant has sufficiently established that they have received the inputs alongwith duty paying documents, thus, taking of credit is under the scheme of the Act and as per the Rules. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 52650 of 2018, 52836 of 2018, 52840 of 2018 and 53170 of 2018 - FINAL ORDER Nos. 51858-51861/2019 - Dated:- 18-9-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. C. L. MAHAR, MEMBER (TECHNICAL) Shri Vivek Suresh Aggarwal, Ms. Reena Rawat, Advocates for the appellant Shri R. K. Mishra, Authorised Representative for the respondent ORDER The issue in these appeals is whether the cenvat credit availed on the invoices of dealer for inputs have been rightly taken. 2. The appellant M/s Reliable Industries is registered with the Department as manufacturer of copper wires falling under heading 7408 of the first schedule of Central Excise Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn the cash amount to them after adjusting 2% of the bill value as commission. 4. Search was also conducted at the office premises of M/s Leo Trans and Logistics, New Delhi, as they were the main transporter in most of the dubious cenvatable invoices. The Accountant of M/s Leo Roadlines Shri Sher Singh who was present, his statement was recorded at the spot on 11.12.2012 who inter alia stated that Shri Sanjeev Maggu is the proprietor. However, M/s Leo Trans and Logistics discontinued its business in 2006 and a new company M/s Leo Roadlines Private Ltd., was created which took over the transport business. He further stated that they have never transported any goods for Shri Amit Gupta and his company. However, they have transported goods for M/s Unnati Alloys Pvt. Limited from ICD, Tuglakabad to Rewari, Naraina, Shahdara, Shahabad, Nangloi etc. 5. Statement of Shri Sanjeev Maggu, Prop. of M/s Leo Trans Logistic and Director of M/s Leo Road Lines Pvt. Limited was recorded on 06.09.2013 wherein he stated that they were still using the stationary of M/s Leo Trans and Logistics and they maintained vehicle movement register wherein various details like date, truck No., contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the appellant under Rule 26 of the Central Excise Rules, 2002. Being aggrieved, the appellants filed appeal before the Commissioner (Appeals) who rejected the appeal. 10. Being aggrieved the appellants are before the Tribunal inter alia on the following grounds. That prima facie, the show cause notice issued for the period prior to 04.08.2011 is barred by time as having been issued after a period of five years from the date of transaction, which is the beyond extended period of limitation as per provisions of section 11A(4) of the Central Excise Act, 1944. That the transactions were admittedly conducted in cheques and through proper banking channels, payments were made after receipt of goods in the factory premises. The transactions were conducted in the normal course of business and are completely genuine. There is no admission on the part of the appellant to have received the invoice without physical receipt of the goods anywhere, and in any of the statements recorded under section 14 of the Central Excise Act. Surprisingly, none of the transporters accepted movement of goods, which clearly indicates that the transporters statement were taken under coercion and duress an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly taken Availment of credit disclosed in ER-1 return invoices not enclosed nor details of such credit given as requirement therefore absent ER-1 filed under self assessment system but officers required to scrutinise the same Credit cannot be held as taken knowingly as not admissible merely because credit on input services considered as not admissible by Department Officers at liberty to inquire details once quantum of service tax credit availed, disclosed impugned order setting aside demand on limitation, sustainable sections 11A and 11AC of Central Excise Act, 1944 Rules 13 and 15 of Cenvat Credit Rules, 2004. That even the CBEC vide Circular No. 312/28/97-CX (F. No. 296/38/97-CX.9) dated 22.04.97 has very categorically held as under:- It has been noticed that quite a lot of unnecessary litigation and avoidable work is created by indiscriminate issue of show cause notice/ less charge demands invoking the proviso to Section 11A of CESA or to Section 28 of the Customs Act, etc. even when there is no fraud or mis-declaration etc. for example, where there has been an established practice well within the knowledge of the department . The Supreme Court has rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the appellant is that only invoices were provided without supplying the goods. In the instant case, it appears that the appellant has availed the cenvat credit on the basis of such duty paying documents and cleared the goods manufactured on payment of duty, which was accepted by the department without any objection. As per the chart mentioned in the impugned order, the departmental officers expressed doubt about the genuineness of sales of the appellant company which is about 50% of the total turn over. Therefore, when the sales are genuine, then such genuine sales is possible only with genuine purchase of standard raw material. The allegation that appellant was procuring the same from the open market on cash basis, is not sustainable for the reason that the appellant has to maintain higher standard of quality to make major supplies either for export or to the companies which are operating in atomic energy, power, defence, oil refining etc. In the instant case, no physical verification of stock was done. No shortage of physical stock was identified. 27. Regarding the allegation that payment was made through banking channel and was received back in cash is not sustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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