TMI Blog2022 (2) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... in turn was receiving from Swastik the said Swastik was having invoices of M/s. Sypher Impex Alloys Pvt. Ltd. but this trail is highly insufficient to hold precisely the invoices in the hands of the appellants are such, against which no goods were sent. To substantiate his case the appellants have placed on record voluminous documents including the purchase orders, invoices, gate registers, GRRs and ledger account. Perusal thereof shows the clear connectivity in these documents reflecting that the appellants were purchasing the copper raw material for their final product against the duly issued invoices by the supplier. These invoices were precisely mentioning the details of the vehicles through which the goods were to be transported from the suppliers for being received by the appellant. Apparently and admittedly there is no investigation from the driver or owner of the said vehicles. The said lacunae creates a major bubble of doubt, the benefit of which is to be extended in favour of the appellants. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16.9.2020 being common to both the appeals. Table S.No. Appeal No. SCN No. and date OIO No. and date OIA No. and date Demand Confirmed 1. E/50185/2021 7043 dated 6.10.2017 168/2018 dated 31.3.2019 75 76/2020 dated 17.9.2020 ₹ 2,33,787/- 2. E/50186/2021 7037 dated 6.10.2017 166/2018- 19 dated 3.03.2019 75 76/2020 dated 17.9.2020 ₹ 1,48,466/- 2. The facts in brief are that the appellant is engaged in manufacture of cast iron. The department received an information from the DGCEI Zonal unit about a show cause notice dated 2.3.2016 to have been issued to M/s. Chandra Proleco ltd. (CPL in short) Silvassa, Dadra and Nagar Havelli alleging that the CPL is indulged in availing the CENVAT Credit fraudulently on the strength of Cenvatable invoices against which no goods i.e. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings against M/s. Trishul Metal Industries were also initiated on the same allegations as have been leveled against the present appellant and the same Show cause notice (verbatim) based upon the Show cause notice against M/s. Sypher Impex Alloys Pvt. Ltd. dated 2.5.2017 was served to M/s. Trishul Metal Industries also. However their case stands decided in the appeal of Trishul Metal Industries vide its Final Order No.52101-52104/2021 dated 27.12.2021 reported as 2021 (12) TMI 1148 (CESTAT-NEW DELHI). It is submitted that this appeal is on the same footings as that of M/s. Trishul Metal Industries Ltd. Therefore, the same benefit is prayed to be extended in favour of the appellants. 5. It is mentioned in addition that the appellants have annexed all the relevant record to prove their bonafide. Said record was produced even before the Adjudicating Authorities Below, but the same have miserably been ignored. Learned counsel has relied upon one of several purchase orders i.e. one bearing No. 939 dated 5.11.2012, the corresponding invoice No. 03234 of 6.11.2012. It is mentioned that the invoices specifically mentions the motor vehicle No. as UP13Z 5304 which transported the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generating CENVAT Credit and passing the same to various firms. 8. Apparently and admittedly, there is no evidence on record as against the present appellant other than the statement of Shri Rajesh Chouhan, the authorised signatory of the appellant. Irrespective Shri Yogesh Singh, Director of M/s. Sypher Impex Alloys Pvt. Ltd. had repeatedly admitted for having no trading activity in his factory at Bhiwadi since 2013. But there is no evidence procured by the Department about any arrangements by M/s. Sypher Impex Alloys Pvt. Ltd. with the present appellant. Though the appellants have been receiving material through M/s. Amtek India Ltd. which in turn was receiving from Swastik the said Swastik was having invoices of M/s. Sypher Impex Alloys Pvt. Ltd. but this trail is highly insufficient to hold precisely the invoices in the hands of the appellants are such, against which no goods were sent. 9. To substantiate his case the appellants have placed on record voluminous documents including the purchase orders, invoices, gate registers, GRRs and ledger account. Perusal thereof shows the clear connectivity in these documents reflecting that the appellants were purchasing the copper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects : (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions. Thus, to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department. Hence the reliance of Commissioner (Appeals) merely on oral testimony is held not relevant and unjustified specially when there is no apparent admission as is alleged. Otherwise also the statements recorded are nothing more than third party evidence. 12. Law is clearly settled that third party evidence cannot be held as the basis for proof of guilt of some other person. Admittedly no search was conducted in the appellants premises. No record was recovered from the appellants custody, nor any material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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