TaxTMI 
TaxTMI 
TaxTMI 
2014 (10) TMI 723
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.... serious error in ignoring the provisions of Section 36A of the Central Excise Act, 1944, by ignoring the statutory documents seized from the custody and records of the assessee and others? (ii) Whether the Tribunal committed error in ignoring material evidence of statement of transporters, drivers, lorry receipts, records of the assessee including aspect of details given about non usable vehicles for transportation etc. and hence, reached to a perverse finding contrary to documentary evidence ? (iii) Whether right of cross examination can be matter of right in quasi judicial proceedings in absence of details provided by assessee for the cause of cross examination? (iv) Whether in absence of any evidence produced by the said assessee regarding admissibility of Cenvat Credit, the CESTAT has not erred by allowing the appeals of the said assessee as the burden of proof regarding the admissibility of CENVAT credit lies upon the manufacturer taking such credit under Cenvat law ? (v) Whether Tribunal was right in setting aside various penalties imposed against assessee? 2. The facts giving rise to the present appeals are that M/s. Bajrang Castings Private Limited, Sanand (herein....
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....i Iron & Steel Industries and M/s. Vasmin Corporation. The adjudicating authority, while deciding the case, extended the benefit of doubt to the assessee and ordered recovery of cenvat credit of Rs. 47,08,339/. By an order dated 30th March 2007, the adjudicating authority, that is, the Commissioner of Central Excise, AhmedabadII disallowed the credit of Rs. 47,08,339/to the assessee under rule 12 of the CENVAT Credit Rules, 200102 (hereinafter referred to as "the rules") read with provisions of section 11A(1) on the ground that it had availed cenvat credit on invoices issued by the above referred firms without actual delivery of the goods. A penalty of Rs. 47,08,339/came to be imposed on the assessee under rule 13 of the rules read with section 11AC of the Act. A penalty of Rs. 20,00,000/came to be imposed on the Director of the assessee - Shri Amit Bhasin. A penalty of Rs. 1,00,000/came to be imposed on the supervisor of assessee Shri Shivprasad Pathak, under rule 209A of the erstwhile Central Excise Rules, 1944 and rule 13 of the rules. Further, penalties of Rs. 5,00,000/on M/s. Star Associates, Rs. 1,00,000/on M/s. Vasmin Corporation and of Rs. 3,00,000/on M/s. Motabhai Iron & S....
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....e demand as well as penalties imposed on the assessee M/ s. Bajrang Castings Private Limited as well as other parties. 6. Mr. Y.N Ravani, learned standing counsel for the appellant, vehemently assailed the impugned order by submitting that the Tribunal has failed to appreciate the evidence on record in proper perspective, and therefore, the findings recorded by the Tribunal are perverse to the record of the case. It was submitted that the Tribunal has failed to consider the outcome of the investigation made from the transporters, angadia, drivers their documents and the detailed inquiries from the road transport authorities, octroi authorities, etc. It was submitted that the Tribunal has failed to consider the evidence collected by the investigating officer and solely relied upon the submissions made by the assessee. It was urged that the mere fact that Shri Bhagchandani could not be cross-examined because he did not appear in the proceedings, cannot be said to have fatal effect as other independent evidences were available on record. It was urged that the revenue had obtained a report from the Octroi Department which is in the nature of independent evidence which clearly shows th....
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....t the Tribunal has in relation to the demand of Rs. 14,42,177/recorded the following findings: "After appreciating submissions made by both the sides, I find that the demand of Rs. 14,42,177/= is on the basis of statement of consignor of goods that he has received only invoices from M/s. Vasmin Corporation, Bhavnagar without physical receipt of M.S Scrap and on the strength of such bogus invoices, he has passed on the CENVAT credit to the appellant unit. Reliance has also been placed upon the statements of some of the drivers/transporters whose vehicle number was mentioned on the weighment slip and who denied transported any goods to the Appellant Unit. However, I find that only on this basis the credit cannot be disallowed to the Appellant unit. Apart from the statement of Shri Arjandas and some of the transporters nothing has been brought on record to show that the goods were not received by the Appellant. I find that M/s. Star Associates being registered dealer under Central Excise issued invoices to the Appellant who has duly recorded the receipt of such goods in their records and made payment through banking channels. There is no such evidence that the said amount towards pu....
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....at there is any infirmity in the view taken by the Tribunal while deleting the disallowance of credit of Rs. 14,42,177/= . 10. In respect of demand of Rs. 5,42,938/=, the Tribunal has recorded as follows: "In respect of demand of Rs. 5,42,938/=, I find that the demand is based upon the findings that the octroi receipt shows the delivery of the goods within the municipal limits of the city whereas the factory is situated outside municipal limits. Reliance is also placed upon the statement of the administrator of trucks who denied the transportation to M/s. Bajrang and partner of two units who actually alleged to have received the goods without invoices. However, I find that only the statement of administrator of truck and octroi receipt the receipt of goods cannot be disputed. I find that the goods were consigned by the ship breakers and no investigation was conducted at their end to ascertain the fact of delivery of goods. Hence, no demand can be made against the Appellant. Moreover, the partners of the firm who are said to have actually received the goods were summoned for cross examination, but they did not appear, in such case their statements cannot be relied upon. The goods....
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....was justified in holding that only on the basis of third party statements, such demand cannot be made. Moreover, as rightly pointed out by the Tribunal, no investigation has been conducted at consignors' place or at the place where the said goods are alleged to have been supplied. Under the circumstances, it cannot be said the Tribunal has committed any error in deleting the aforesaid demands. 14. As regards the demand of Rs. 3,26,188/, the Tribunal has recorded as follows: "The demand of Rs. 3,26,188/has been made against the Appellant that as per the verification reported by the RTO in 17 cases, it was found that the vehicles shown to have transported the goods were not capable of carrying the goods as same pertains to Tanker/trailer/Delivery Van or LGV / Taxi and Passenger Van and thus the Appellant has availed irregular credit. I find that the goods were duly found to have recorded in the Appellant's factory and were consumed in the production. The payment was made through banking channels which is not denied. No investigations have been made at the consignors end in this regard. In such case, I do not find any reason to disallow the credit to the appellant. I rely u....
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....ern was written as the officers told him that the enquiry pertains to the appellant. Also in his letters to the Superintendent (Prev.) had made his position clear. It is also pertinent to see that in all demand was made on 44 consignments. However, only in respect of two transporters who had transported merely 3 consignments, the alleged discrepancy has been pointed out whereas in case of other transporters, no discrepancy has been found. I also find that the director of the Appellant company in his statement on 19.09.2003 has clearly stated that the payment is made to M/s. Motabhai after one month of the receipt of the goods. Nowhere he has denied the receipt of goods from M/s. Motabhai. In such circumstances, when there is no corroboration from either the records of M/s. Motabhai and the Appellant, I do not find any reason to disallow credit to the appellant. The demand cannot be confirmed against the assessee only on the basis of statements of third parties when there are no evidences in support of such statements." 17. Thus, from the evidence on record, it appears that all the goods supplied by M/s. Motabhai Iron & Steel were accompanied by documents evidencing payment of duty....