2015 (4) TMI 933

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....l amount of penalty and order dated 31.08.2010, passed in first appeal filed by the appellant. A statement made by one Shri R.K.Gupta, Proprietor of M/s R.K.Enterprises, that he had passed on MODVAT/CENVAT credit without supplying goods and by only issuing invoices led to the search of his premises, recording of statements of Sarla Devi mother of R.K.Gupta, Raj Kumar Verma, authorised signatory of the appellant, Arun Kumar partner of M/s Jain Tar Udyog as also recovery of forged documents and seals etc. As the respondent formed a prima-facie opinion that the appellant had contravened Rule 57 AB, 57 AC and 57 AE of the Central Excise Rules, 1944, (hereinafter referred to as the 'Rules'), the appellant was called upon vide notice d....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nting an opportunity to the appellant to prove that they had received and consumed goods sold to them by Shri R.K.Gupta. The Assistant Commissioner passed a fresh order dated 31.08.2010 maintaining the disallowance of CENVAT credit and imposed penalty. The appellant filed an appeal which was dismissed on 04.02.2011. The appeal filed by the appellant before the CESTAT has been dismissed. Counsel for the appellant submits that the foundation of the case is the statement made by Shri R.K.Gupta who stated that GR books were printed by him and that the transport companies named in the GR books do not exist but did not state that goods were not supplied to the appellant. All that Shri R.K.Gupta stated was that where the quantity delivered w....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....se Commissionerate V/s M/s Garima Enterprises and another, CEA-122-2006, decided on 06.01.2009; 3. Commissioner of Central Excise, Delhi-IV V/s Rajdoot Cables (P) Ltd. 2010 (254) ELT 606 (P&H); 4 . Lakshmi Wire V/s Commissioner of Central Excise, Delhi-IV , 2006 (193) ELT 511 (Tri.-Del.); 5 . Commissioner of Central Excise, Chandigarh-1 V/s M/s Laxmi Engineering Works, GCR-4-2004, decided on 22.03.2010; and 6 . Mahek Glazes Pvt. Ltd. V/s Union of India, 2014 (3000) ELT 25 (Guj.). Counsel for the revenue submits that a perusal of order, dated 08.09.2009, passed by the CESTAT remitting the matter to the adjudicating authority reveals that the CESTAT has recorded a finding that GR receipts are bogus and have been fabricated but ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rused the record. In this case there is no dispute about the fact that the GRs under which the goods had been dispatched by the registered dealer-M/s R.S.Enterprises are bogus and had been fabricated by him. In fact, the owner of one of the trucks which was used for transportation of the goods covered under invoice no. 241 & 256 in her statement has clearly stated that she is not aware of the transportation of any goods of M/s R.K.Enterprises. In view of these circumstances, following the judgment of this Tribunal in the case of Rijiv Allows Ltd. (supra), I hold that the burden of proving that under these invoices the goods had actually been received would be on the appellant. Since the ratio of this judgment has not been considered by the ....