2017 (1) TMI 488 - AT - Central Excise

Tribunal rejects appeals due to lack of evidence on imported goods; diversion proven over genuine use.

Vijayshree Alloys (Pune) Pvt. Ltd. Versus Commissioner of Central Excise, Pune-lll

The Tribunal upheld the impugned order, rejecting the appeals filed by the appellants due to lack of evidence proving the genuine receipt and consumption ... CENVAT credit - clandestine removal - whether CENVAT Credit of ₹ 1,64,286/- availed by the appellant on the imported goods on the basis of the Bill of Entry No. 854886 dated 28.04.2005 is a case of fraudulent availment of CENVAT Credit since the allegation is that appellant has not actually received and used the said goods in the manufacture of declared output goods? Held that: - I find that the evidences submitted by the department in support of the fact that the goods were actually not received and consequently not use by the appellant is very conclusive and convincing. On the contrary, the Director of the appellant Company Sh. Kalpesh Prakas Oswal was specifically asked to provide evidence of transportation and receipt of the goods in his factory. He could only say that they could not find such documents and did not produce any document to substantiate transport and receipt of impugned goods in their factory. The appellants have argued that the Cenvat register entries are proof of the goods having been used in the factory - In the case of Viraj Alloys Ltd. Vs. CCE, Thane-Il [2004 (8) TMI 223 - CESTAT, MUMBAI], the Tribunal has held that the entry in RG-23A Part-I could not prove that inputs had been received in factory. Also, in the case of Harsaran Dass Sita Ram Vs. CCE. Panchkula [2015 (4) TMI 933 - PUNJAB & HARYANA HIGH COURT], it was held that in cases of wrong availment of credit without receipt of goods, the burden to prove genuineness of transaction or the fact that the appellant actually received and consumed the goods is on the appellants - In this case, the appellants have failed to prove transport, receipt and consumption of impugned goods in their factory. Appeal rejected - decided in favor of Revenue. Issues:Fraudulent availment of CENVAT Credit on imported goods.Analysis:1. The case involved the appellant, a holder of Central Excise Registration for manufacturing Aluminum ingots, who availed CENVAT Credit on imported aluminum scrap. The Directorate General of Central Excise Intelligence alleged that the goods were diverted and not used in the manufacturing process, leading to a Show Cause Notice being issued.2. The original authority confirmed the demand for wrongly availed CENVAT Credit, imposed penalties, and ordered confiscation of the inputs. The First Appellate Authority upheld this decision, prompting the appellants to approach the Tribunal.3. The appellant's advocate presented documents to prove the purchase and receipt of goods, along with entries in the CENVAT register. Case laws were cited in support of their argument.4. The department, represented by the Advocate, provided evidence indicating that the goods were diverted, including statements, bills, and weighbridge slips. Various case laws were cited to strengthen their position.5. The primary issue for consideration was whether the appellant fraudulently availed CENVAT Credit without actually receiving and using the imported goods in manufacturing.6. The Tribunal reviewed the evidence presented by both parties. The appellant's evidence focused on the purchase and payment for goods, while the department's evidence highlighted the diversion of goods based on statements and documents.7. The Tribunal found conclusive evidence supporting the department's claim that the goods were diverted and not used by the appellant. The appellant failed to provide evidence of transportation and receipt of goods in their factory.8. Case laws cited by the appellants were deemed irrelevant due to the factual findings and lack of evidence supporting the receipt and use of goods in the manufacturing process.9. The Tribunal upheld the impugned order, rejecting the appeals filed by the appellants based on the lack of evidence proving the genuine receipt and consumption of the imported goods in their factory.This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, evidence considered, and the Tribunal's decision based on the facts and legal precedents cited during the proceedings.