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TMI Blog2021 (12) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... BHD-I/2017-18 Dt.29.06.2017 153(CE)/2018-19 Dt.14.3.2019 12-16/SM/ CE/JPR/2020 dt.18.02.2020 Penalty of Rs. 2,00,000/- 4. E/50886/2020 V(74)41/SCN/AMW/BHD-I/2017-18 /2081 Dt.29.06.2017 153(CE)/2018-19 Dt.14.3.2019 12-16/SM/ CE/JPR/2020 dt.18.02.2020 Penalty of Rs. 2,00,000/- 5. E/50910/2020 V(74)41/SCN/AMW/BHD-I/2017-18 Dt. __/06/2017 153(CE)/2018-19 Dt.14.3.2019 12-16/SM/ CE/JPR/2020 dt.18.02.2020 Penalty of Rs. 2,00,000/- 2. The main appellant M/s. Agrawal Metals are engaged in manufacture of non-ferrous flat roll products. On the basis of specific information received in the Directorate General of Central Excise intelligence head quarters (hereinafter referred to as DGCEI). That one Shri Amit Gupta was operating several companies, with his relatives and wife as directors therein for importing prime metals, namely:- 1. M/s. Brilliant Metals Pvt. Ltd., Delhi 2. M/s. Forward Minerals & Metal Private Ltd., Delhi 3. M/s. Progressive Alloys (India) Pvt. Ltd., Delhi 4. M/s.Unnati Alloys Pvt. Ltd., Gurgaon 5. M/s.Unnati Alloys Pvt. Ltd., Delhi 6. M/s.Unnati Alloys Pvt. Ltd., Jaipur 7. M/s.Moral Alloys Private Limited, Delhi 8. M/s.Mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of Amit Gupta. No enquiries, whatsoever, were made at the end of the appellant nor got statement of any person of Appellants Company recorded. It is submitted that the goods were duly transported from the premises of V.K. Enterprises to the premises of Agrawal Metal Works by Trucks whose registration Nos. were available in the respective invoices. Proper records of receipt, weighment and entries into factory Registers were made and the payment were made to V.K. Enterprises through Cheque / Online transfer but none of the appellant's records were taken into consideration by the Investigating Agency. The Adjudicating Authority below has also failed to consider the same. Appellant's records have regularly been audited without any noticed discrepancy, but Commissioner (Appeals) has ignored the said submissions. The order, accordingly, is not sustainable and therefore, is prayed to be set aside. Ld. Counsel has relied upon the following case laws:- 1. M/s.Arya Alloys Private Limited, Romy Bansal, Director, Raj Kumar Bansal, Director (Former), Amit Gupta vs. Commissioner , Cent6ral Goods & Servie Tax, Customs & Central Excise, Alwar - 2020 (3) TMI 148 - CESTAT, New Delhi. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s. Agrawal metals as mentioned in the Show Cause Notice have rightly been held to be the fake invoices. There is no evidence of any goods to have been transported from M/s. V.K. Enterprises to M/s. Agrawal based on said invoices. Hence there is no infirmity in the orders under challenge. Appeals are accordingly, prayed to be dismissed. 8. After hearing the rival contentions and perusing the entire record, it is observed and held as follows:- Revenue had made out a case that Shri Amit Gupta has admitted about creating fictitious firms in the name of M/s.Forward Minerals & Metals Pvt. Ltd., Unnati Alloys Pvt. Ltd. etc. (as mentioned above) to issue Cenvatable invoices without accompanying the goods. Hence, no question arises for M/s. Agrawal Metal Works to have receive goods mentioned in the three invoices bearing No. 33, 34 & 54. Hence, the Agrawal Metals, the recipient of invoices being manufacturers are alleged to be not entitled to take the Cenvat Credit. Accordingly, the credit availed, has been confirmed with the order of imposition of penalties. 9. I observe that other than statement of Mr.Amit Gupta as was recorded on 06.12.2012 there is no other document on record to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cross-examination of Shri Amit Gupta ad Shri Sanjeev Maggu, the earlier statements of Amit Gupta dated 06.12.2012 and that of Shri Sanjeev Maggu of 06.09.2013 become redundant. From the order under challenge, it is abundantly clear that except relying upon these statements and presuming the corroboration from the statement of other persons no other evidence has been discussed by Commissioner (Appeals). He rather has wrongly recorded in para 18.1 of the order under challenge that from the cross-examination of the statements of Shri Amit Gupta and Shri Sanjeev Maggu no retraction at all is apparent. This particular observation is sufficient to set aside the order which is solely relying the statements of Examination - in - Chief of said Amit Gupta and said Sanjeev Maggu. 12. I further observe that on same investigation several cases have already been adjudicated by this Tribunal. In M/s. Arya Alloy Pvt. Ltd. (supra) it has been held that there is no evidence on record except the statement of Shri Amit Gupta and the transporter not even for proving the allegations of receiving back of cash as against the payments made through banking channels. It is rather the fact that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of alleged kin-pin Shri Amit Gupta and the transporter Shri Sanjeev Maggu. There is no other relevant evidence to prove the Departments case. Rather there is statement of Shri D.P. Sharma, Senior Manager of M/s. Aggarwal Metals Pvt. Ltd. as was reorded on 24.05.2017 which is relevant w.r.t. the impugned three invoices of M/s. V.K. Enterprises. He specifically deposed that M/s. Agrawal Metals used to purchase copper scrap from V.K. Enterprises against the payments either by RTGS or by Cheques. He has outrighly denied the invoices to be mere cenvatable without delivery of goods. He also denied receiving any cash from M/s.V.K. Enterprises of the amount sent by them through RTGS/Cheque. This deposition clearly falsifies the presumptive alleged modus-operandis. 16. Law has been settled that mere statements are not sufficient to prove clandestine removal. Hon'ble High Court of Allahabad in the case of Continental Cement Co. Vs. Union of India reported as 2014 (309) ELT 411 (Allahabad) had earlier laid down the criteria of investigation to prove the allegation of clandestine sale in following words: "Further, unless there is clinching evidence of the nature of purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X
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