TaxTMI 
TaxTMI 
TaxTMI 
2015 (9) TMI 1147
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....ny. On 03.12.2007, the Central Excise Officers, Headquarter Preventive, Vadodara-I, visited the factory premises of the Appellant Company and conducted stock verification and no dispute was found. On 03.12.2007, a statement of Shri Hemant N. Gokhale, Director & Authorised Signatory of the Appellant Company (Appellant No.2) was recorded. Thereafter, various statements of Shri Hemant N. Gokhale were recorded on different dates. The Appellants had supplied the records and documents to the Central Excise Officers for verification. 2. A show cause notice dt.09.12.2009 was issued, proposing to disallow the CENVAT Credit of Rs. 71,09,522.00 alongwith interest and to impose penalty on the Appellant Company for the period 2006-07 and 2007-08 and also to impose penalty on Shri Hemant N. Gokhale, Director and Authorised Signatory of the Appellant Company. By the impugned order, the Adjudicating authority disallowed and confirmed the demand of CENVAT Credit of Rs. 71,09,522.00 alongwith interest and imposed penalty of equal amount of CENVAT Credit and also appropriated the amount of Rs. 8,73,012.00 as already paid by the Appellant Company. A penalty of Rs. 5 lakhs under Rule 25 of CENVAT Cred....
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....fore the Bench. 4. The learned Authorised Representative on behalf of the Revenue reiterates the findings of the Adjudicating authority. He submits that the Appellant No.2 failed to produce the Lorry Receipts, Consignment Notes. In some cases, the RTO report would show that the vehicle numbers mentioned in the invoices, were Auto Rickshaws, not capable to carry heavy cargo. The Appellant might have co-related the input and output ratio based on the purchasing of the raw material/scrap from the open market. It is further submitted that the outstanding amounts were paid to the supplier, after issuance of the show cause notice. The learned Authorised Representative strongly relied upon the decision of the Tribunal in the case of Rajiv Alloys Ltd Vs CCE Chandigarh - 2009 (236) ELT 124 (Tri-Del) and in the case of V.K. Enterprises Vs CCE Panchkula - 2010 (249) ELT 462 (Tri-Del). 5. After hearing both the sides and on perusal of the records, we find that on 03.12.2007, the Central Excise officers visited the Appellant's factory on the basis of information that the Appellant availed the CENVAT Credit on invoices issued by the two registered dealers viz. M/s Good Luck Empire and M/s Jeni....
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....hey have wrongly availed CENVAT amount of Rs. 5.94 lakhs. On being asked regarding payment of Rs. 5.49 lakhs, credit taken by them as detailed in worksheet-II, he stated that they would like to contest the issue. In statement dt.18.11.2009, the Appellant No.2 stated that they received the materials accompanied with Central Excise invoices, without lorry receipts. They maintained raw material stock register in the form of RG23A Part II, in which they have shown the receipt and consumption of raw material. In statement dt.27.11.2009, the Appellant No.2 explained the reasons for outstanding payments to the supplier of the raw material. In some cases, the supplier supplied inferior quality material at a higher rate and they did not agree on rate, the payment is outstanding for such a long period. In some cases, they did not make the payment due to financial crisis. It is also stated that they utilized the materials in their factory in the manufacture of finished goods. It is further stated that even in the case of inferior quality, they used the materials slowly and piecemeal over a period of time. The stocks were reflected in the records and books of account. Thereafter, a show cause ....
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....es of vehicles mentioned therein. Some vehicles, such as Tata 1613/42, Delivery Van etc, were capable to carry the goods, but, the goods were overloaded (i.e. beyond the capacity). The other types of vehicles Bajaj Auto, Atul Auto etc were not capable to carry the goods. In the case of other types of vehicles, Bajaj Auto, Atul Auto etc, it may be concluded that the goods were not received by the Appellant and the onus shifted on to the Appellant to prove that the goods were duly received by them and used in the manufacture of their finished products. This view is supported by the decision of the Tribunal in the case of Ranjeev Alloys Ltd Vs Commissioner of Central Excise, Chandigarh (supra), as relied upon by the learned Authorised Representative of the Revenue. In that case, the verification reports were received from RTO, transportation of goods by vehicle like Scooters, Motor Cycles, Mopeds, Combines, Jeeps etc, which are incapable to carry goods. The Tribunal held that onus lies with the assessee. In the present case, the Appellant had taken a stand that they have received the goods accompanied with the invoices even the vehicles mentioned as Auto Rickshaws and there are d....
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....ince 2004-2005. They produced their CENVAT register and account to substantiate the receipt of raw material and used in the manufacture of final product. It is important to note that since 2004-2005, the Appellants had been receiving the goods without Lorry Receipts and the dispute was raised only for the period 2006-07 and 2007-08. It was contended by the Appellant that there is no material available to show that the Appellant procured the raw materials from outside. The Appellant also submitted the details of month-wise power consumption, in support of the manufacture of the finished goods. The Adjudicating authority observed that their claim is not acceptable as the input-output ratio could have been maintained by them from the material purchased from open market and it cannot prove that same were manufactured from the goods of impugned disputed invoices. 10. We are unable to accept such findings of the Adjudicating authority for the reason that the entire case was made out on the basis of various statements of the Appellant No.2 and RTO report. There is no investigation conducted at the suppliers end in respect of the invoices mentioned in Annexure I (i) and I(ii) of the Notic....
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....icion have been noticed. However, the same have not been followed up for further investigation and the Tribunal allowed the appeal of the Assessee. The Hon'ble Gujarat High Court upheld the said decision of the Tribunal, by judgment dt.15.09.2009 in Tax Appeal No.1123 of 2008. In that case, the learned Counsel for the assessee had placed reliance on judgment of Punjab & Haryana High Court in the case of Commissioner of Central Excise, Chandigarh Vs. Neepaz Steels Ltd reported in 2008 (230) ELT 218 (P&H) and in the case of Commissioner of Central Excise, Chandigarh Vs Nirmal Kumar Aggarwal, reported in 2008 (230) ELT 47 (P&H). The Hon'ble High Court observed that the principles laid down by Punjab & Haryana High Court would squarely apply to the facts of the present case and rejected the appeal filed by the Revenue. 12. In the case of CCE Ludhiana Vs Talson Mills Store - 2015 (315) ELT 415 (P&H), the Hon'ble Punjab & Haryana High Court observed that the Revenue was required to hold an independent enquiry against the respondent and dismissed the appeal filed by the Revenue. In the case of CCE Vs Saakeen Alloys Pvt.Ltd - 2014 (308) ELT 655 (Guj.), the Hon'ble Gujarat High....
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....gistered under Central Excise Rules and they are in existence in their address. There is no material available that the Cenvat invoices accompanied with goods are not genuine. So, in my considered opinion, the appellant had satisfied the conditions as provided under Rule 9(3) of the said Rules. Hence, there is no reason to deny the credit on the appellant. The dispute raised by the Revenue of value of the goods, cannot be reason for denial of Cenvat credit subject to fulfilment of condition of Cenvat Credit Rules. Apart from that, the transaction of the goods at a lower price is within the domain of buyer and seller. 15. On the identical situation, the Tribunal in the case of Hiren Aluminum Ltd Vs Commissioner of Central Excise, Valsad - 2009 (245) ELT 386 (Tri-Ahmd), observed as under: 15. At this stage we may discuss the various decisions relied upon by the ld. Advocate. Tribunal in the case of M/s. Tejwal Dyestuff Industries [2007 (216) E.L.T. 310 (Tri.-Ahmd.)], by majority decision has held that if it is not disputed that the inputs were used for the final product and statutory returns were filed, the lethargy of the Revenue officers in not verifying the relevant statutory re....
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....Vs CCE Ahmedabad-II - 2014 (302) ELT 69 (Tri-Ahmd.), the Tribunal held as under:- I also find that it is an undisputed fact that all the purchases were duly recorded in the statutory books of the Appellant and the goods were also found to be entered in statutory records of the Appellant. No investigation has been made at unit of M/s. Bajrang which could have supported the findings of the adjudicating authority. None of the consignor of the goods has denied the clearance of goods to M/s. Bajrang. There is no evidence which can show that the records maintained by the Appellant are not correct. Only on the basis of statement of some of the transporters, the huge credit is sought to be disallowed whereas the statements are in isolation with no corroboration. I therefore hold that the impugned order for disallowance of credit to the Appellant is not sustainable. Accordingly the demands are set aside. In the peculiar facts and circumstances of this case and in the absence of cogent evidence, the demands are not sustainable, as a consequence the penalties upon M/s. Bajrang and other Appellants are also not sustainable and are accordingly set aside. I therefore allow the appeals with con....