TMI Blog2022 (2) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... d clandestine disposal of the disputed input remains unsubstantiated. As regard the allegation of the department about the substitution of the disputed inputs by scrap procured from market, there is no evidence showing details as to any single supplier of alleged substituted scrap or about transportation thereof, or any financial transaction with the alleged suppliers of the substituted scrap. This shows that the department s case of clandestine disposal of the disputed inputs and its substitution by procurement of scrap has no support of any evidence. The case of the revenue is based on some evidences such as RTO Report and Commercial Tax Check post report to allege that as per the said reports the vehicle has not passed from Delhi. On the contrary, the respondent have heavily relied upon various documents for movement of receipt of the duty paid copper inputs such as valid Central Excise Invoices, delivery challans, lorry receipts, entries in respondent s stores ledger, material inspection reports, etc. Against the said transaction payment through official bank channels for the full value of aforesaid duty paid copper inputs has been made against the Central Excise Invoice. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 11-2-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri G.Kirupanandan, Superintendent (AR) for the Appellant Shri Willingdon Christian, Advocate for the Respondent ORDER This appeal is filed by the revenue against the impugned order wherein denovo proceedings the Principal Commissioner, CGST Central Excise, Daman dropped the Cenvat Credit demand of ₹ 1,63,29,798/- (incl. cess) in respect of the case against the Respondent of taking Cenvat Credit allegedly on the basis of invoices without actually receiving the goods. 02. The Revenue challenged Order-In-Original dated 12.07.2019 on the grounds that The Adjudicating authority has placed reliance on the decision of CESTAT, Ahmedabad vide Order No. A/11031-11032/2019 dated 28.06.2019 in case of Gujarat Forging Pvt. Ltd. and held that said decision is applicable to the facts of the present case on all force. The Adjudicating authority has erred in placing reliance on the mentioned decision involving distinguishable facts, in as much as, though the issue may look similar, but the charges and evidence in the subject notice are different. The inputs have not at all b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Hansa Tubes Pvt. Ltd., Vs Commissioner of Central Excise, Chandigarh [2006(004)STR0549(Tri.-Del.) (iv) M/s Mangalam Alloys Ltd. Vs CCE, Ahemedabad. Tax Appeal No. 1088 of 2018 (v) Commissioner of Central Excise Vs Srikumar Agencies 2008(232)ELT577(SC) (vi) Haryana Financial Corporation Ltd Vs Jagadamba Oil Ltd. (2002) 3 SCC 496, (vii) Deputy Director of Enforcement, Madras Vs A.M. Ceaser 1999(113)E.L.T 804 (Mad.) (viii) Surjeet Singh Chhabra Vs Union of India 1997(89)ELT646(SC) (ix) Vinod Solanki Vs Union of India 2009(233) E.LT. 157 (SC) (x) Gulabchand Silk Mills Pvt. Ltd. Vs Commissioner of C.Ex. 2005 (184)ELT263 -Tri. Bang. 04. Shri Willingdon Christian, Learned Counsel appearing on behalf of the respondent submits that there is not a single statement of any supplier to the effect that the disputed inputs were not supplied to Respondent and were supplied to some other parties. There is no evidence that some third parties have made payment to the supplier of the disputed inputs. Only on the basis of third party statement or records, the demand for denial of cenvat Credit cannot be sustained. The Respondent preparing Job-Work Challan and entries also made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 We find that it is admitted fact that the appellant used to procure copper Ingot/ Bars/ Scraps, etc. as raw material from indigenous/import sources and get them converted into copper wire rods of required sized from different job worker who had Hot Rolling facilities. Such job worked Copper Wire Rods were converted into Copper Wires in the Respondent s factory. The department in support of their case needs to prove; (a) On one hand, the allegation of clandestine disposal of the disputed inputs and (b) On the other hand also to prove about sources, transportation, money flow, etc. of procurement of substituted scrap in place of the disputed inputs. 5.2 We find that there is neither any investigation nor any evidence on the aspects of alleged disposal of disputed inputs in or around Delhi. The investigation could not bring on record the single alleged buyer out of huge quantity of 303MT. Similarly, there are no details about transportation of goods or about financial transactions or any flow back from the suppliers of alleged buyers therefore, the alleged clandestine disposal of the disputed input remains unsubstantiated. As regard the allegation of the department about th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each individual consignment with details of quantity dispatched, quantity manufactured, processing loss, etc. v) Daily Stock Register maintained under Rule 10 of the Central Excise Rules, 2002 showing daily production of final product (copper wires) out of the copper wire rods received from the job workers who had manufactured the same (copper wire rods) out of the aforementioned duty paid copper inputs. vi) Monthly ER-1 returns containing details of clearance of final products and abstract of Cenvat Credit Registers for the respective month. From the above documents, it clearly shows that the respondent have received the copper goods transported from Jammu based manufacturers to the respondent s job workers. We find that the revenue could not held the above documents as fake or incorrect. 5.4 We further find that during the panchnama dated 10.02.06 and 21.12.06 drawn at the respondent s factory during the visit of the investigating officers, no evidence or any discrepancies were found between book and physical stocks of raw material and finished goods particularly without any indication of presence of non-duty paid copper inputs or absence of duty paid copper inputs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of some stray evidences which also not substantiated. 5.6 It is also a fact that the Officers of the DGCEI summoned the job worker when the statutory and other office records of the job workers were taken by the DGCEI Officers but investigation results not reflected in the show cause notice. This shows that the evidences in support of the respondent were not brought on the record of the show cause notice nor discussed the same. As regard the inculpatory statements of three employees of the transporter M/S. SINGAL, the same have been retracted. Shri Subhas C Sharma, Manager, Delhi retracted his statement dated 28.11.2006 on same day. Shri Gulab Shankar Pandey, Clerk in Ahmedabad office of SINGAL retracted his statement dated 24.08.2007 and similarly, Shri. Atul Sharma , Manager of the said office retracted his statement dated 24.08.2007 on the same day. Shri. Atul in his cross-examination deposed that - a) Delivery registers do not keep records of door delivery consignments. b) confirmed transportation of M/s. Taha s goods and delivery of the same, c) There is alternate route, wherein Shamlaji Check post his by passed and d) They received all the payments from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty paid inputs without any documents to substitute the duty paid inputs therefore, on this basis also the department s allegation of non receipt of duty paid goods does not stand. The department in support of their allegation for non receipt of duty paid copper inputs by the Respondent could not bring a single buyer of the duty paid inputs which was alleged to have been diverted in an around Delhi. Therefore, in absence of any evidence the entire allegation is based on assumption, presumption and conjunctures. 5.8 The department s case is entirely based on the following so-called evidence: (i) Three statements of M/s Singal's employees, inspite of retraction, as recorded in SCN itself; (ii) Truck movement records at Ratanpur Shamlaji check posts, inspite of adoption of corrupt practices as per IIM's e-governance Report to the Government of India (placed in case record); and (iii) Some records in delivery registers called Railway Receipt Registers, maintained at M/s Singal's Ahmedabad office, showing delivery of only miscellaneous goods to parties in around Ahmedabad; but no entry of delivery of copper, shown to have carried together as in 10 trucks of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue. (10) The inputs have also been entered in the official stores ledger and used in manufacture of final products which are cleared on payment of duty. Consequently, the denial of Cenvat Credit on the sole ground that the vehicle numbers were not found to be genuine cannot be made basis for arriving at the finding against the respondent. (11) The consideration for the disputed inputs was paid through cheque and freight payment were also made through cheque or vouchers. (12) There is no inculpatory statement of the respondent on the contrary the director has repeatedly stated in his two recorded statement about the receipt inputs in his factory and about no illicit transaction resorted by the respondent. (13) There is absolutely no evidence or investigation rather to show as to how the huge quantity of disputed inputs has been disposed of clandestinely and how and from which source the substituted inputs were procured. (14) The facts of the present case is also similar to the facts of the various judgments relied upon by the respondent. Some of the judgments are cited below:- NISSAN COPPER PVT LTD VS. CCE 32014 (313) ELT 449 (TRI. AHMD.) AKSHAY LPG VALV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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