TMI Blog2021 (12) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions of impugned invoices as genuine. Resultantly it stands clear that the confirmation of demand against the appellant has been confirmed based on the third party evidence. Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence - It is well settled law that there has to be some concrete evidence which would show clandestine manufacture of goods, as was reiterated by Tribunal, Delhi in the case of C.C.E. S.T. -RAIPUR VERSUS P.D. INDUSTRIES PVT. LTD. [ 2015 (11) TMI 455 - CESTAT NEW DELHI] . The document recovered from the appellant premises shows that the appellant had maintained a record about the invoices being received from various companies whereupon the appellant has availed the Cenvat Credit. Merely because the company issuing invoice was found non-existent, the appellant could not be denied the availment of Cenvat Credit thereupon unless and until his involvement in terms of his knowledge about such non-existence and about the invoice to be bogus is not proved on record. Otherwise also there is no denial that the appellant has cleared his final product on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 nullify the order confirmed in demand. Appeal allowed - decided in favor of appellant. - EXCISE APPEAL NO. 52313-52316/2019 - FINAL ORDER No. 52101-52104 /2021 - Dated:- 27-12-2021 - MRS RACHNA GUPTA, MEMBER (JUDICIAL) Shri Bipin Garg Ms Kainaat, Advocate for the Appellant Shri Ravi Kapoor, Authorised Representative for the Department ORDER The present appeal has been filed to assail the order of Commissioner (Appeals) bearing No. 174-179/2019 dated 06.06.2019. The relevant facts of adjudication, in brief, are as follows: That the appellants are engaged in the manufacture of copper ingots. The Department initially received the information through Director General of Central Excise Intelligence, Delhi Zone unit (DGCEI). Show cause notice dated 2.3.2016 issued to M/s. Chandra Proteco Ltd., Silvassa on the basis of fraudulent availment of CENVAT Credit on the strength of Cenvatable invoices raised by M/s. Sypher Impex Alloys Pvt. Ltd. Bhiwadi, Alwar, against which the no goods as that of copper ingots were received by them physically in their factory premises. On the basis of the said show cause notice, the information was called from the Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Investigating officer. It was only duly shown that such invoices have appropriately been accounted for in appellants statutory CENVAT Credit account registers. It is impressed upon that there is no evidence as was collected from the appellants premises to prove the above said allegations against the appellants. There is no denial to the fact that the impugned invoices are consigned to appellants factory. The findings of the adjudicating authority below have mentioned based upon the statements recorded by the third parties upon the documents recovered from the third party premises. Reliance has wrongly been placed to fasten the liability upon the appellants. Learned Counsel has emphasised upon the several statements recorded at the time of investigation mentioning that none of them have uttered even an iota of doubt about the appellants to not to have received the inputs from M/s. Sypher Impex Alloys Pvt. Ltd. The deposition that Director of M/s. Sypher Impex Alloys Pvt. Ltd. Shri Yogesh Singh was in the habit of generating fake invoices is not sufficient to prove that the invoices issued in the name of appellants were also fake. Order accordingly is prayed to be set aside. Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered o 20.5.2013, He specifically admitted about not supplying any material to M/s. Chandra Proteco Ltd. There is no mention about any such arrangement of M/s. Sypher Impex Alloys Pvt. Ltd. with the present appellant. No movement of vehicle was at all involved in case of said company. Only a payment used to be made to the transporter through cheque for the same amount mostly to give back in cash and transporters and for issuing their GRs. Issue of sale invoice and payments relating as stated to be handled by Shri Pawan Gupta of M/s. Star Delta acknowledge to be authorised signatory Statement of Shri Banwari Lal Sharma, the transporter was also recorded who stated that he has issued bilties for transport of goods to M/s. M/s. Sypher Impex Alloys Pvt. Ltd. from Bhiwadi to Bhiwadi, Bhiwadi to Jaipur and Bhiwadi to Delhi and nowhere else. The present appellants are based in Alwar. Though this transporter has also admitted that all the GRs used to be issued by Shri Yogesh Singh out of book of GRs provided by the transporter and the transporter used to receive ₹ 100/- per biltie. This witness stated that the blank bilties books of M/s. Chauhan Transport service was also provided Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84/- . 6. From the entire above deposition, it is clear that there is no evidence to prove that the appellant have not received material from M/s. Sypher Impex Alloys Pvt. Ltd through the invoices No. 67, 69 and 90 dated 8.6.2012, 10.6.2012 and 2.7.2012 respectively. Irrespective Shri Yogesh Singh Director would have been involved in the practice of issuing fake invoices for permitting the purchasers of raw material to have fraudulent CENVAT Credit but there is no iota of any positive evidence for involvement of the present appellant in the said fraudulent availment. The Department has failed to falsify the statement of Shri O P Sharma and to falsify the documents produced by them for proving the transactions of impugned invoices as genuine. 7. Resultantly it stands clear that the confirmation of demand against the appellant has been confirmed based on the third party evidence. Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence. The relevant case law in the case of Bajrangbali Ingots Steel Pvt. Ltd. Suresh Agarwal vs. CCE, Raipur in Appeal No. E/52062 52066/2018 hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corroborative evidence is also required. For this purpose no investigation was conducted by the Department. 9. I further observe that the document recovered from the appellant premises shows that the appellant had maintained a record about the invoices being received from various companies whereupon the appellant has availed the Cenvat Credit. Merely because the company issuing invoice was found non-existent, the appellant could not be denied the availment of Cenvat Credit thereupon unless and until his involvement in terms of his knowledge about such non-existence and about the invoice to be bogus is not proved on record. Otherwise also there is no denial that the appellant has cleared his final product on payment of duty. In such circumstances and that the invoices were containing all the particulars as are required under Rule 9 of Cenvat Credit Rules and that the appellant was also making the record of all those details. The allegations based on the statements given by other manufacturers, first or second stage dealers or even by the transporters cannot be read against the appellant. I draw my support from the decision of Hon'ble High Court of Allahabad in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is apparent compliance of Rule 9, CCR 2004 on part of the appellant. The allegations based on the fact that manufacturers as that of M/s.High Tides Infra Project Pvt. Ltd are found non-existent have been set aside. 11. In the case of Jindal Drugs Pvt. Ltd. vs. UOI reported as [2016 (340) ELT 67 ( P H)] Similar are the facts for the present appeal. Hence I have no reason to differ from the above findings. 12. Above all, it becomes clear that entire case of the Department is on the basis of statements of witnesses who were never allowed to be cross examined by the present appellants. There is no other material with the Revenue to justify its findings against the appellants. Withholding the opportunity to cross examination to the appellants definitely amounts to violation of principles of natural justice and the statutory mandate of section 9D of Central Excise Act, 1944 which becomes another reason for nullifying the impugned order. The procedure prescribed under section 9 D of Central Excise Act is required to be scrupulously followed as was held by Hon ble Delhi High Court in the case of J K Cigarettes Ltd. vs. CCE reported as [2009 (242) ELT 189] . 13. Hon ble Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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