TaxTMI 
TaxTMI 
2015 (5) TMI 1026
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....cles shown in the invoices raised by him actually belong to some two wheelers, etc. Further, the investigations were initiated and evidences collected led the Revenue to believe that the appellant has not received the inputs in question. 3. The appellant took a categorical stand that they have actually received the inputs, which were entered in their RG-I register Part-I and the said inputs were further used in the manufacture of their final products, which were cleared on payment of duty. The appellant also took a stand that the Revenue has not been able to show any alternative source of procurement of raw materials and in such a scenario, the credit cannot be denied inasmuch as the appellant cannot manufacture their final products without the actual receipt of the inputs. 3. The said submissions of the appellant were not accepted by the lower authorities, who confirmed the demands and imposed penalties. Hence, the present appeals along with stay petitions. 4. We have heard both the sides duly represented by Shri Kamaljeet Singh, ld. Advocate for the appellant and Shri Yashpal Sharma, ld. DR for the respondent, in support of the stay petitions and have gone....
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....y the Revenue before the Hon'ble Supreme Court when the appeal was rejected as reported in Commissioner v. Roll Cold Strips Pvt. Ltd. - 2009 (242) E.L.T. A83 (S.C.). 8. As such, it is seen that the proceedings initiated, on the same evidences against the other assessees, who had procured the inputs from the same very dealer, M/s. Majestic Industries Ltd., have attained finality till the Hon'ble Supreme Court's decision. Such final orders are required to be followed and in any case, at the interim stage of stay proceedings. 9. Ld. DR has drawn our attention to the Hon'ble Punjab & Haryana High Court's decision in the case of Ranjeev Alloys Ltd. v. CCE, Chandigarh - 2009 (247) E.L.T. 27 (P&H), wherein, after noting the facts as available in that decision, the Hon'ble High Court observed that there is no question of law, much less a substantial question of law, which would arise for determination of this Court. It was observed that the Court cannot re-appreciate the evidence and record a different finding even if another view is possible. Ld. DR submits that inasmuch as the Hon'ble Punjab & Haryana High Court has upheld the Tribunal's decision in the case of Ranjeev Al....
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....ies Ltd. had taken the above mentioned Cenvat credit. The allegation of the department is that the registered dealer, M/s. Majestc Industries Ltd. had issued these invoices without supply of any materials. This allegation is based on the following evidences :- (a) In some cases, on enquiry with the owners of the vehicles mentioned in the invoices, they have denied having carried any goods of M/s. Majestic Industries Ltd. (b) In a number of cases, registration number of vehicles, as mentioned in the invoices issued by M/s. Majestic Industries, were found to be of non-transport vehicles like tankers, motorcycles, etc., in which the goods shown to have been supplied, could not be transported. (c) In 13 cases, while the GRs have been issued by the Transport Company viz. M/s. SKS Road Lines, on enquiry, it was found that there was no transport company at the given address. (d) In some cases, the GRs said to have been issued by M/s. Walia Cargo Carriers and under which the goods, covered by the invoices, in question, are claimed to have been transported, were foun....
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....cient to establish the charge; and (b) Kanungo & Co. v. Commissioner of Customs reported in AIR 1972 SC 2136 = 1983 (13) E.L.T. 1486 (S.C.) and Commissioner of Customs, Madras v. D. Bhoormull reported in 1983 (13) E.L.T. 1546 (S.C.) wherein it has been held that - (i) once the department produces evidence of duty evasion against an assessee, the onus of proving his innocence shifts to the assessee, (ii) the department would be deemed to have been discharged its burden of proof if it adduces only that much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the facts sought to be proved; and (iii) since it is exceedingly difficult, if not impossible, for the prosecution to prove the facts which are especially within the knowledge of the accused, it is not obliged to prove them as part of its primary burden and on the principle underlying Section 106 of the Evidence Act, the burden to establish those facts is cast on the person concerned and if he fails to establish or explain th....
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....edit demand, interest and penalty shall stand waived and its recovery stayed till the disposal of the appeals. Sd/- (Rakesh Kumar) Member (Technical) 16. Since there is difference of opinion between Member (Judicial) and Member (Technical), the Registry is directed to place this matter before Hon'ble President for nominating a third Member for deciding the following point of difference. "Whether in the facts and circumstances of this case, the requirement of pre-deposit of Cenvat credit demand, interest and penalty as per the provisions of Section 35F of the Central Excise Act, 1944 is to be unconditionally waived and its recovery stayed, as ordered by Hon'ble Member (Judicial) or whether in the facts and circumstances of this case, both the appellants are to be put to condition of pre-deposit for compliance with the provisions of Section 35F, as ordered by Member (Technical)." Sd/- (Rakesh Kumar) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) 17. [Per : R.K. Singh, Member (T)]. - The following difference of opinion has been referred to me :- "Whether in the facts and circumstances of this case, the requirement of ....
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....M/s. Majestic Metaliks Ltd. along with interest and imposed penalty of equal amount on them besides penalty of Rs. 15,00,000/- on M/s. Majestic Industries Ltd. for issuing fake invoices." 19. In the light of the above facts, ld. Member (Technical) was of the view that full waiver of pre-deposit is not warranted in the present case and thereby ordered a pre-deposit of Rs. 25 lakhs by M/s. Majestic Industries Ltd. and Rs. 2 lakhs by M/s. Majestic Metaliks Ltd. and added that cross-examination was not relevant where the transport company was found to be non-existent or where vehicle numbers were found to be of vehicles which could not transport the said goods. The ld. Member (Technical) while arriving at his decision, inter alia, noted :- "13. The main submission of the ld. Counsel for the appellant, besides their reliance on judgment of Hon'ble Punjab & Haryana High Court in case of M/s. Shakti Roll Cold Strips Pvt. Ltd. (supra), is that the cross-examination of the transporters, whose statements have been relied upon by the department in support of the above allegation has been denied and, therefore, no reliance can be placed on the transporters' statemen....
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.... GRs were produced, the registration numbers of vehicles claimed to have transported the goods being of such vehicles which cannot carry such items, etc., full waiver of pre-deposit would not be in order specially in the wake of the judgment of Punjab & Haryana High Court in the case of Ranjeev Alloys Ltd. (supra). However, it is seen that in the case of Shakti Roll Cold Strips Pvt. Ltd. (supra), the Commissioner (Appeals) vide order dated 15-12-2004 allowed the appeal of the assessee observing that the adjudicating authority has passed the order only on the ground that the vehicles used for transporting the inputs were not capable of transporting the goods in question and as such, it has been presumed that the Modvat credit has been taken without actual receipt of the inputs and that the said ground is not sufficient to deny the Modvat credit to the appellant by presuming that no inputs have been received by the appellant. In an appeal before the Tribunal against the order of Commissioner (Appeals), the Tribunal observed as under :- "In this case, the Revenue denied the credit on the ground that the respondent had not received the inputs; however, credit was availed....