9911796707
TMI Blog2024 (9) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... overed under those invoices. Accordingly, the DGCEI had interpreted that the appellants have a availed inadmissible CENVAT credit of Rs.14,67,774/- and utilized the same for payment of central excise duty, thereby they have contravened the provisions of Central Excise Rules, 2002. Further, it is also alleged by DGCEI that the appellants have aided and abetted under the guise of job work undertaken at M/s Star Metals & Tubes Corporation, Mumbai in availing of inadmissible CENVAT credit by arranging the central excise invoices of M/s AIPL, Ludhiana in the manufacture of other than copper tubes on job work basis with other material/inputs that were shown in the invoices of M/s AIPL, Ludhiana under supply to M/s Mars International. On completion of the investigation, DGCEI had issued show cause notice No. F. No. DGCEI/MZU/ I&IS'C'/12(4)12/2009 dated 25.05.2009. 2.3 The said SCN dated 25.05.2009 was adjudicated by the Additional Commissioner, Central Excise, Mumbai-V in confirmation of the demand of Rs.14,67,774/- along with interest and equal amount of penalty, besides imposition of penalties on various noticees to the SCN under Rule 26 of Central Excise Rules, 2004 vide Order-in-Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e records, it is noticed that CENVAT credit was denied to the appellants on the ground that they have received the invoices from M/s. AIPL; further, it was alleged in DGCEI investigation that M/s. AIPL, Ludhiana have not supplied the inputs covered under said invoice, as they do not have any manufacturing facilities in their factory. I find that in the first round of litigation, the Tribunal had seen the fact that the entire case was made out on the basis of mainly statements of various persons who are not related to the appellants but they are either representative of M/s. AIPL, broker, Octroi Agent etc. As regard the statements given by the appellant's partner, he has categorically stated that they have received input under cover of the invoices on which they have taken credit. In these circumstances, The Tribunal had ordered that the request of the appellants for cross examination of the witnesses should have been considered and the cross examination should have been allowed. When the statements of third party are relied upon by the adjudicating authority and if the person against whom the said statements are used, denied those statements, it is obligatory on the part of the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing penalties is therefore legal and proper. I. accordingly, do not find any substance in the appeal which merits to be rejected." 7. From the records of the case, I find that M/s AIPL, Ludhiana had disputed the allegation raised by the department that they had no facility for manufacture of copper ingots inside the factory premises etc., at the initial stage of DGCEI investigation, by filing a civil suit against the local Commissioner of Central Excise and Customs before the Civil Judge (Senior Division) Ludhiana. In disposal of such application filed by M/s AIPL, under Order 26 Rule 9 CPC this case had culminated into passing of an order dated 04.10.2006, wherein the said Civil Judge had appointed a Local Commissioner who shall visit the spot and report about the actual and factual position of machinery lying installed in the factory of the plaintiff M/s AIPL. The said Local Commissioner Shri L.S. Rai had submitted the court that in compliance with the order of the Hon'ble Court, he went to the premises of the plaintiff M/s AIPL situated at 327, Industrial Area-A, Near Cheema Chowk, Ludhiana at about 03.30 P.M. on 14.10.2006 and he had prepared the presence sheet at the spor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in the impugned order that the CENVAT credit taken on the basis of invoice issued by M/s AIPL, Ludhiana is without a prescription of material is contrary to the factual position, as indicated above. Further, during cross examination of the manager Shri Jaswantbhai Shah, he had clearly stated that he had received the invoice along with the material from M/s AIPL, Ludhiana. Therefore, I do not find any basis or any other evidence for coming to a conclusion that the receipt of copper ingots etc., by the appellants from M/s AIPL, Ludhiana, is improper. 8.1 In this regard, I find that the Tribunal in case involving similar facts and for the same disputed supplier M/s AIPL, Ludhiana, in the case of STI Industries Vs. Commissioner of Central Excise & Service Tax., Vapi - 2015 (325) E.L.T. 910 (Tri.-Ahmd.) have held that the CENVAT credit cannot be denied, as the documents produced show that M/s AIPL was in existence and supplied the material with invoices. The relevant paragraph of the said order is as follows: "9.....In the present case, I find that appellant had produced several evidence in respect of receipt of inputs and the same were not disputed and the officers proceeded mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
