TMI Blog2022 (3) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... rted by weighment slips, also proves the receipt of the goods. The assessee-Appellant also produced the sample invoices against which they have availed the Cenvat Credit along with supporting documents, including lorry receipts and weighment slips. Also demonstrated the ledger account of the suppliers, supported with statutory register and Bank Statement. Thus, appellant have prima facie, discharged the onus on them. Therefore, the burden is cast upon the Revenue to prove that it was merely a paper transaction, and goods were not received by the assessee-Appellant, as alleged, which it failed - It is further demonstrated that all the payments made to the First Stage Dealers are through banking channels, by way of Cheques/RTGS. The Revenue has not brought on record any evidence to prove any flow back of monies. The assessee-Appellant have discharged its onus as required under Rule 9(1) (5) of CCR, 2004 and as explained by Hon ble Allahabad High Court in its decision in the case of THE COMMISSIONER OF CENTRAL EXCISE CUSTOMS SERVICE TAX VERSUS M/S. JUHI ALLOYS LTD., ANIL KUMAR SHUKLA [ 2014 (1) TMI 1475 - ALLAHABAD HIGH COURT] . Appeal allowed - decided in favor of appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri, Raipur [1st State Dealer] M.S. Scrap M/s.Supreme Multitrade Pvt. Ltd. and M/s.Singh Mineral Infratech (appear to be non-existent manufacturers) 6,10,415/- 2. M/s.RMS Steel Tech Co.Hirapur, Raipur [Ist Stage Dealer] M.S. Scrap M/s.High Tides Infra Project Pvt. Ltd. M/s.Singh Mineral Infratech (appear to be Non-existent manufacturers) 6,73,428/- 3. M/s.Bright Metal and Steel [Ist Stage Dealer], Raipur M.S. Scrap M/s.Singh Engineering Works (non-existent manufacturer), M/s. Mongia Steel Ltd., M/s. Adhunik Alloys and Power Ltd, (genuine manufacturers but on enquiry it is revealed that they have not issued the invoices to M/s. Bright Metal) 16,91,635/- 4. M/s.S.R. Metallics [1st stage Dealer], Raipur. M.S. Scrap M/s. Supreme Multitrade Pvt. Ltd. 56,270/- 5. M/s.Rakti Trading Pvt. Ltd. [1st Stage D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RG-23 Register were also made. Accordingly, Cenvat credit was availed by them in accordance with law by intimating the Department by filing ER-1 Returns regularly. 8. Regarding the allegation that payments were made through cheques and in lieu thereof cash was received, the learned counsel submitted that during search by the Revenue neither any unexplained cash was recovered from the premises of the assessee-Appellant, nor any corroborative evidence was brought on record to substantiate the claim. It is further contended that the Revenue has not even bothered to cross-check the Bank Account(s) of any of the First Stage Dealers, to prove the allegation of cash withdrawal by them, which clearly demonstrates that the Revenue has proceeded on the basis of assumptions and presumptions, and came to the conclusion merely relying upon the statement of Shri Pradeep Agarwal and Rajesh Agarwal (Third persons/parties). 9. The allegation that they were receiving invoices only from the suppliers, without supply of goods, or fraudulently availing of Cenvat Credit, is baseless and not sustainable. He also submitted that the Revenue did not carry out physical verification of stock of raw mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd out from the Revenue or Central Excise whether actually duty has been paid on the inputs by the supplier. No business can be carried out like this, and the law does not expect the impossible. 12. Learned counsel further submitted that the Revenue did not make any investigation to ascertain whether the Dhanbad parties were in existence at any point of time or stopped their operation subsequently. Being non-operative does not necessarily leads to a conclusion that the said parties were never in existence as alleged by the Department. Further, the said Units have been stated to be non-operative by the Revenue, much after the period under consideration being 2012-13 to 2016-17, for which demand is made in the show cause notice, and as such it cannot be conclusively said that the Units were not doing any manufacturing activities when supplies of MS Scrap were received by First Stage Dealers from such units, and which material was further supplied to the assessee-Appellant. It is the submission of the learned counsel that the allegation of non-operative units is only presumptive and assumptive in nature, and cannot be termed as conclusive evidence for raising demands. He fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of bazaar scrap, kabadi scrap and other non-cenvatable scrap, in alliance with one Shri Pradeep Kumar Agarwal, who used these sales proceeds against Cenvatable invoice. Shri Prince Kumar Singh in his statement dated 15.12.2015 accepted above facts. Shri Vivek Agarwal, Director/appellant stated that his company sold 400 MT of bazaar scrap and Kabadi scrap to M/s. Bright Metal Steel, who are alleged to have issued fake cenvatable invoice, showing supply of iron and steel scrap for availing cenvat credit. Further, appellant have paid ₹ 30 lakhs (under protest) against liability. Under Rule 9(5) of the Cenvat Credit Rules, the burden of proof regarding admissibility of CENVAT credit shall lie upon the manufacturer taking credit. In case of dealer, where dealer has maintained records, that inputs were supplied from the stock on which duty was paid by the producer of such inputs Rule 9(4). Accordingly, he prays for dismissing the appeal. He also relies on the following rulings:- (i) N.R. Sponge Pvt. Ltd. 2020 (372) ELT 321 (Chattisgarh High Court) (ii) Silicone Concepts International Pvt. Ltd. Final Order No.C/A/50963/2019-CU(DB) dt.1.8.2019 in Appeal No.C/50796/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stage Dealers are through banking channels, by way of Cheques/RTGS. The Revenue has not brought on record any evidence to prove any flow back of monies. 16. The Revenue s reliance on the VAT Returns filed by the First Stage Dealers, to contend that there is no mention of any receipt of goods from outside state (units at Dhanbad) is untenable, in as much as the VAT Returns sought to be relied upon by the Revenue only pertains to purchases within the State made by the said First Stage Dealers. Purchases made by the First Stage Dealers of Raipur, Chhattisgarh from units at Dhanbad, Jharkhand cannot be termed as purchases within the State and would thus not find any mention in the VAT Returns of such First Stage Dealers under the head List of purchase from such dealers within the State from whom purchases of more than 3 lakh in a year have been made. As such purchases are definitely inter-state. 17. From the available record, we also find that the assessee-Appellant have discharged its onus as required under Rule 9(1) (5) of CCR, 2004 and as explained by Hon ble Allahabad High Court in its decision in the case of Commissioner, Excise Customs and Service Tax Vs Juhi Alloys l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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