TMI Blog2023 (3) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicles mentioned in the Challans/records of respondents have not entered into Gujarat via Bhilad Check Post. It is found that contrary to this evidences the fact that the respondent have recorded the receipt of the goods in their Raw materials account i.e. RG-23 Part I and RG-23 Part-II, the purchase of the imported goods under the Bills of Entry in question were booked in books of account. The Respondent has also shown the use of disputed inputs in their factory premises for manufacture of finished goods, even the payment of transportation was also made by cheque. The Revenue could not bring any evidence that the goods covered under the Bills of Entry were diverted to any other place. There is absolutely no evidence to show the substitution of raw material which in our view would cut the root of the allegation as the statutory records show that goods were manufactured. No shortage of raw material was detected during search of factory. No single buyer of diverted raw material was found by the revenue. In the present case no such inculpatory statement of alleged diverted imported inputs buyer is available, there was no shortage found in the stock if had the respondent availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry and vice versa - the Revenue has not concluded the proper investigation to ascertain the truth, moreover, have relied upon third party documents/evidence which cannot be an evidence to deny credit - the respondent has correctly taken the credit. Once it is clear that the respondent were sought to be issued show cause notice without furnishing copies of relied upon documents and even the efforts were made on the part of the respondents to get the same did not yield any fruitful result and even today the copies of the documents are not made available to the respondents - the finding of the adjudicating authority on the point of non availability of relied upon documents can not be found faulted which does not warrant interference in the impugned order. There are no infirmity in the impugned order, hence the appeals of the revenue are not tenable - appeal of Revenue dismissed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Prabhat K. Rameshwaram, Addl. Commissioner for the Appellant- Revenue Shri J C Patel Shri Rahul Gajera, Advocates for the Respondent-Assessee ORDER All the appeals filed by the Revenue are arising out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , CHA dockets, Delivery Challan Books, etc. As follow up action, the officers of the Jurisdictional Commissionerate also carried out searches at the factory premises of M/s. GIPL at Daman. Certain records/ documents were resumed by the officers for further investigation. It was alleged against the respondent that they have taken the Cenvat credit on the strength of duty paying documents (Bills of Entry) without receiving the goods. In these circumstances, the show cause notice was issued to deny the Cenvat credit to the respondent and also proposing penalties on other co-noticees. The matter was adjudicated, the Learned Commissioner in the impugned order set aside charges alleged against the respondents and dropped the proceedings initiated through the show cause notice. Aggrieved with the said order, the Revenue is in appeals before this Tribunal. 03. Shri Prabhat Rameshwaram, learned Additional Commissioner (AR) appearing on behalf of the Revenue reiterates the grounds of appeal. He further submits that Learned Adjudicating authority after referring to the details of the various correspondence made between the respondents, the investigating agency viz., DGCEI, and the office o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, which are based in the context of denial of Cenvat Credit of input stage duty in view of non-receipt of duty paid inputs and its use in or in relation to manufacture of dutiable final products in the factory premises of M/s GIPL. Merely payment of applicable duties on inputs and possession of duty paying documents alone are not sufficient to entitle a person to avail cenvat credit thereof. The investigation have sought to allege and establish non-receipts of duty paid inputs by M/s. GIPL and its use in manufacture of dutiable final products based on various tangible/corroborative evidences such as RTO reports evidencing non-transportation of goods to the factory of M/s. GIPL; documentary evidences, statements of key person of M/s GIPL, M/s PSTC, other transporters and records of manipulation of input-output ratio by M/s GIPL; which corroborate the allegations recorded in impugned SCN of wrong availment of Cenvat Credit of imported goods merely on the basis of duty paying documents without physical receipt of goods in their factory premises to be used in the manufacture of final products. The adjudicating authority appears to have ignored the statutory provisions that though Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... INS PVT LTD- 2013 (295) ELT 116 (Tri-Bang) HARYANA STEEL ALLOYS LTD- 2017 (355) ELT 451 (Tri-Del) LAWN TEXTILES MILLS P LTD- 2013 (297) ELT 561 (Tri-Chennai) CCE, MUMBAI Vs. KALVERT FOODS INDIA P LTD.- 2011 (270) ELT 643 (SC) TELESTAR TRAVELS P LTD Vs. SPECIAL DIRECTOR OF ENFORCEMENT- 2013 (289) ELT 3 (SC) P B NAIR C F P LTD.- 2015 (318) ELT 437 (Tri-Mum) RAJESH KUMAR Vs. CESTAT- 2016(333) ELT 256 (Del) MONTEX DYG PTG WORKS- 2007 (208) ELT 536 (Tri-Ahmd) AGARWAL OVERSEAS CORPORATION- 2009 (248) ELT 242 (Tri-Mum) KANUNGO CO.- 1983 (13) ELT 1486 (SC) PARAGON STEELS P LTD.- 2018 (15) GSTL 298 (Tri-Bang) 04. Learned Counsels Shri J C Patel along with Shri Rahul Gajera, appeared on behalf of the respondent submits that the Principal Commissioner has rightly held that copies of seized documents, both relied upon and non- relied upon, have not been provided to the Respondent, despite several requests made by the respondents over the years. The stand of the investigating authority, DGGI, Mumbai that all the RUDs and Non RUDs have been provided to the Respondents is factually incorrect, contrary to the records and totally untenable. The adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uck continued transport even beyond the destination made in DLRs and second that in such event, transport bills were prepared for the final destination beyond that mentioned in DLRs as per the telephonic instructions of the drivers. Thus merely because the destination mentioned in DLRs is Navi Mumbai, it does not follow from that the goods have not been transported beyond Navi Mumabi. What is to be seen that wherever the transportation is continued beyond Navi Mumbai, the transport Bills are prepared for the final destination based on the instruction of the drivers. In case of all the entries appearing in Annexure -1 of the Notice, the transport bills raised on the Respondent by Pankaj Shipping Transport Co. are for transportation upto factory at Daman and all such bills have been paid by respondent by cheque. It is contended in the show cause notice that the final destination of Daman had not been mentioned in the MLRS and that therefore it should be concluded that the goods were not transported to Daman by Pankaj Shipping Transport Co. The said contention is totally untenable. Firstly, as against the total 268 entries in Annexure A1 and 67 entries in Annexure A3 i.e. total 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Cash. No details of such alleged expenses in cash undertaken on respondent s behalf have been provided. Fourthly, Rajeshwar R, Dubey has not been examined as required by Section 9D of the Central Excise Act 1944 and opportunity has not been given to the Respondent to cross examine him as required by the said Section 9D. Fifthly, in any event, no adverse inference can be drawn against the Respondent on the basis of such third party statements of transporters. 4.5 He argued that reliance placed on the RTO report relating to Bhilad Check post to allege that the vehicle in question did not enter Gujarat and therefore could not have transported the goods to Daman is totally untenable in law. A bare perusal of the said RTO reports would show that no reliance can be placed on the same to allege that the vehicle did not enter Gujarat. It would seen that in the entire RTO Report the vehicles in question have been shown as having gone Out (O) of Gujarat without having entered in (I) to Gujarat. It is not possible for the vehicle to have gone out of Gujarat without having first entered in Gujarat. Further, statement dated 09.02.2009 of Rajendra Kumar Maurya, Driver of Pankaj Shipping an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t transported to Daman. Respondent made payment of only that Bill which is in accordance with the actual transportation. Therefore, where two Bills were found, one upto Navi Mumbai and other upto Daman, Respondent paid the Bill for Navi Mumbai if goods were transported only upto Navi Mumbai and Respondent paid the Bill for Daman if the goods were transported up to Daman. As stated by Rajeshwar R. Dubey in his statement dated 11.09.2007, the said DLRs were prepared by their supervisors located at Panvel-Uran highway open space and on the basis of the DLRs, transport Bills were prepared and further if their trailer-trucks continued the transport beyond the destination given in DLR, transport Bills were prepared on the basis of telephonic intimation of concerned drivers. It is therefore possible that initially the Bills was prepared for the destination as mentioned in DLR and subsequently since the truck continued the transport beyond the destination given in DLR transport Bill was prepared for the final destination. The crucial facts however is that Respondent have paid for the transport bill as per the actual transportation. It is evident from Annexure-3 itself that merely because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the Bills of Entry were diverted to any other place. It is also not the case of the department that the Respondent have procured some unaccounted inputs/raw materials to cover up the quantity of imported input shown in the said Bills of Entry. The statement of director of the Respondent s company is exculpatory and there is no admission of any diversion of the imported duty paid inputs. Moreover in the present matter revenue could not find out any single buyer of the alleged diverted inputs. 5.1 At the outset, it has to be stated that in this case no discrepancy was found in the statutory records. So also apart from the records of RTO and transporters and their statements there is no material evidence brought out by investigation to establish that the goods did not reach the factory of the Respondent. Whereas, all the documentary evidence stand in favour of the Respondent. The argument of revenue that the operation was meticulously planned and therefore the department in such cases cannot be asked to establish the case with mathematical precision. We have no quarrel with the submission made by the learned departmental representative that in clandestine cases, it may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot received by the respondent in factory. Therefore the facts are established that the respondent have received the inputs in their factory used in the manufacture of final product and same was cleared on payment of duty. Further, the investigation is silent as to how the respondent-manufacturers, manufactured finished material without receiving the inputs. The law is settled that as long as duty payment is accepted on outputs, the benefit of credit available cannot be denied. Therefore, there are no substantial evidences which result the disallowance of credit. In this circumstance, we do not find any infirmity in the impugned order. 5.2 We also noticed that in the present case the department for denying the Cenvat Credit placed reliance on third party evidence i.e. transporters documents /statements and RTO records. It is necessary to check the evidentiary value of the third party evidence as held in the judgments in the case of Bajrangbali Ingots Steel Pvt. Ltd. Suresh Agarwal v. CCE, Raipur in Appeal Nos. E/52062 52066/2018, which is as follows: 9. The law i.e. as to whether the thirdpartyrecords can be adopted as an evidence for arriving at the findings of clandes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansport the goods to the respondent s factory. Further the said report appears to be of no evidentiary value as observed that it does not give true and correct details of the inward or outward details of vehicles. The said report is erroneous because if the vehicle has made an inward entry it must have an outward entry before making an inward entry and vice versa. We also noticed that there is an alternate route available for transportation from Mumbai to Daman without going through Bhilad Check Post / without RTO check post. The same is also confirmed by the Driver Shri Rajkumar Maurya in his statement. In the circumstances, we are of the considered view that the Revenue has not concluded the proper investigation to ascertain the truth, moreover, have relied upon third party documents/evidence which cannot be an evidence to deny credit. Therefore, we are of the view that the respondent has correctly taken the credit. 5.5 Without prejudice, we also find that the department has not supplied the relied upon/ non-relied upon documents to the respondent in spite of their requests. It is the submission of Department that the documents were already been provided to the respondent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with their appeal or thereafter. Not only that, even after many years of adjudication and filing of revenue s appeal, the said relied upon documents could not be brought before us. It is pertinent to note that despite the above position, during the conclusion of the hearing before us, the learned AR for the revenue sought time for production of relied upon documents on which, we, keeping in view the principles of natural justice granted time to the revenue for production of relied upon documents but since the documents are not available, even after more than one and half months of hearing the revenue could not produce the same before us. In view of the above undisputed fact, it is established that the revenue has failed to provide the relied upon documentswhich is the foundation of the case in hand. Therefore the finding of the adjudicating authority on the point of non availability of relied upon documents can not be found faulted which does not warrant interference in the impugned order. 5.8 As regard the plethora of judgments relied upon by learned AR in his post hearing submission, we find that the present case is based on its individual fact. In this nature of cases, the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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