TMI Blog2023 (9) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... er held that in the absence of any evidence of procurement of the scrap from alternate source/ bazaar scrap, it cannot be assumed that the imported duty paid scrap was substituted with local non-duty paid bazaar Scrap and the Cenvat Credit of the duty paid on the imported scrap cannot be denied. Reliance can be placed in M/S SUNLAND ALLOYS, PRAVIN KUMAR A RANKA, SHIVRAJ SINGHAL VERSUS C.C.E. S.T. -VAPI [ 2015 (10) TMI 1104 - CESTAT AHMEDABAD] and M/S SUNLAND METAL RECYCLING INDUSTRIES, SHRI SURENDRA P. KACHHARA VERSUS COMMISSIONERS OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX-VAPI [ 2016 (2) TMI 534 - CESTAT AHMEDABAD] . In the instant case, it can be observed that at the time of search of the factory on 1-12-2006 no bazaar scrap was found in the factory, there is absolutely no evidence of procurement of local non-duty paid bazaar scrap for substitution of the imported duty paid scrap. In fact, Rajeshwar R. Dubey has in his Statement dated 29-11-2007 stated that the Appellants were not purchasing any Scrap from the local market. There is not a single buyer identified to whom the imported duty paid scrap was allegedly sold and there is no evidence whatever of any cash receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 to November 2006 availed Cenvat Credit of the Additional Duty of Customs (CVD), Education Cess thereon and Special Additional Duty of Customs (SAD) paid on the inputs viz. Aluminium/Copper/ Brass/ Zinc Scrap imported by them for use in relation to the manufacture of Ingots of Aluminium/Copper/Brass/ Zinc, which were cleared on payment of duty. 2.1 The said Inputs were imported at the Port of Nhava Sheva and the customs clearance and transportation thereof from Nhava Sheva to the factory of M/s. Sainath Industries at Silvassa was undertaken by M/s. Pankaj Shipping and Transport Company, of which the Appellant - Shri Rajeshwar R. Dubey is proprietor. The transportation was undertaken in Trailer Trucks owned by M/s. Pankaj Shipping and Transport Company as well as hired from M/s. Noel Enterprises and M/s. Om Sai Ram Containers Movers. 2.2 In November 2006, the DGCEI initiated investigations in respect of imports of Aluminium/Copper/ Brass/ Zinc Scrap made by the Appellant, M/s. Sainath Industries as well as other importers-manufacturers such as Sunland Alloys, Sunland Metal Recycling Industries and Garg Industries P. Limited, whose customs clearance and transport was attend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed inputs at Bhiwandi; the allegation of disposal of the duty-paid imported inputs for cash is totally unsubstantiated as not a single buyer of such alleged disposal has been identified and there is no evidence of receipt of payment in cash by the Appellants, c) That there is absolutely no evidence of procurement of bazaar (local) non-duty paid scrap by the Appellants to substitute the duty- paid imported inputs. No such bazaar scrap was found in the factory at the time of search of the factory. d) That no reliance can be placed on the inculpatory portion of statements of Rajeshwar R. Dubey as the same contradicted the other portion of his statements from which it is apparent that initial mention of Bhiwandi in DLR was not the final destination and transportation continued beyond Bhiwandi to the factory of the Appellants, e) That statement of Rajeshwar R. Dubey that there might be diversion of inputs is totally vague and unreliable as no particulars of any diversion have been given and not a single buyer has been identified. He was forced to admit to diversion under threat to suspend and cancel his CHA license, f) That it was necessary to examine Rajeshwar R. Dubey and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law: (a) Sunland Alloys and Ors vs. CCE, Vapi-2015 (10) TMI 1104- CESTAT AHD (b) Sunland Metal Recycling Industries and Ors vs. CCE, Vapi-2016 (2) TMI 534-CESTAT AHD (c) CCE vs. Garg Industries P. Ltd and ors-2023 (3) TMI 637-CESTAT AHD (d) Rajeshwar R Dubey v CCE, Vapi- Order No. A / 11317 /2023 dated 22-6-2023 5.1 In the aforesaid decisions this Tribunal has held that since there is not even an iota of evidence of disposal of the goods at Bhiwandi/ Navi Mumbai, there being not even a single buyer of the goods who is identified and there being no evidence of receipt of any cash against such alleged disposal, the Cenvat Credit cannot be denied merely on the ground that the destination mentioned in the DLRs/ MLRs of the transporter - Pankaj Shipping and Transport Co was Bhiwandi/ Navi Mumbai. This Tribunal has further held that in the absence of any evidence of procurement of the scrap from alternate source/ bazaar scrap, it cannot be assumed that the imported duty paid scrap was substituted with local non-duty paid bazaar Scrap and the Cenvat Credit of the duty paid on the imported scrap cannot be denied. This Tribunal has further held that no reliance can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajeshwar R. Dubey has in his Statement dated 29-11-2007 stated that the Appellants were not purchasing any Scrap from the local market. There is not a single buyer identified to whom the imported duty paid scrap was allegedly sold and there is no evidence whatever of any cash received by the Appellant for such alleged sale. In that view, it is impossible to hold that there is diversion of 842 M.Tons worth Rs. 5 crores without even a single buyer being identified and without any evidence of receipt of cash payment by the Appellant of such a large amount; all the imported duty paid inputs have been duly accounted for in RG 23 A Register and the final products have been manufactured and cleared on payment of duty. In his Statement dated 28.02.2009 Appellant Sainath Industries Accounts Manager, Shri Sanjay Chaturvedi has stated that he made entries in RG 23A Register based on instructions of factory gate security staff and sorting supervisor; no investigation has been made with the factory gate security staff and sorting supervisor nor is it the case in the Show Cause Notice that the imported inputs were not entered in the inward gate register; Significantly, payments for transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment s case of 42 containers) is totally vague and unreliable as no particulars of any diversion have been given and not a single buyer has been identified, shows he might have been forced to admit to diversion. e) That it was necessary to examine Rajeshwar R. Dubey and no reliance can be placed on his statements in absence of his examination before the adjudicating authority. f) Since freight up to Silvassa factory has been paid by cheque, statement dated 19-12-2012 of Shri Rajeshwar R. Dubey that goods were transported only up to Bhiwandi is ex-facie false. g) It is an admitted position that freight up to Bhiwandi was only Rs.5,000/- (20 Ft container) and Rs. 7,500/- (40 Ft Container) whereas upto Silvasaa, it was double. The statement of Shri Rajeshwar R. Dubey that though payment of freight was made of Rs.10,000/- (20 Ft Container) and Rs.15,000/- (40Ft container), transportation was only up to Bhiwandi and that excess was for miscellaneous expenses is ex-facie false and incapable of belief as miscellaneous expenses for transport to Bhiwandi cannot be equal to freight up to Bhiwandi. 5.5 It is observed that the Show Cause Notice and the Order-in-Original have inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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