TaxTMI 
TaxTMI 
2016 (6) TMI 762
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.....412403, dated 07-03-2005 and appeal No.E/1267/2011 is again the penalty proceedings against co-notices. The issue involved in all the above appeals being the same and the show cause notices having been issued from the same investigation process, the appeals were heard together and are disposed by this common order. 3. The appellants are manufacturers of excisable goods and are availing facility of Cenvat credit. Upon certain investigations conducted by DGCEI, Ahmedabad Zonal unit and followup action initiated by DGCEI, Hyderabad, it was suspected that certain importers located in Delhi had resorted to importing re-melted copper ingots/wire bars directly in their name or some times directly in the name of manufacturers by filing Bill of Entry. But the goods imported were sold in and around Delhi. The manufacturers, however, availed Cenvat Credit on the Bills of Entry showing that these goods were transported from Delhi to their factory and received in the factory, when actually the goods were not received. The appellants were then issued show cause notices invoking extended period of limitation. After adjudication, the original authority confirmed the demand, interest and penalt....
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....thout transporting the same to the appellants factory. This fact has been accepted voluntarily by Sri V.K.Janaki Ram, Authorised Signatory of the appellant company and corroborated by Sri Satish Agarwal, Partner of the Transport Company. The modus operandi has been unraveled by the investigating agency beyond any scope of doubt and issued show cause notice, which was adjudicated by the respondent by not considering the contents of the cross examination of Sri V.K.Janaki Ram, Authorised Signatory and the affidavit of Sri Satish Agarwal, Partner of the transport company as the contents therein are after thought preparations to safeguard the malafide intentions of the appellants. In this regard, I concur with the findings of the respondent made in his impugned order. In view of the above, I find no force in the contentions of the appellants and the case laws relied by the appellants are distinguishable to the issue on hand since the authorized signatory of the appellant company had admitted the modus operandi in availment of Cenvat Credit fraudulently without actual receipt of the raw material in their factory premises and the same has been corroborated by the Partner of Transport Com....
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..... (iii) The whole case is framed upon statements recorded, some of which have been retracted. None of the statements are corroborated by material evidence. The statement of Sri Janakiram was recorded showing him the statement of transporter Sri Satish Agarwal. But Shri Satish Agarwal retracted his statement before a Magistrate. Further, Shri Satish Agarwal is only a partner of the Transporter firm stationed at Mumbai. He was asked to sign a list of LRs which also included three LRs relating to the appellant. That the said list of LRs is not made part of RUD. (iv) The statement of Sri V.K.Janakiram was recorded on 02-07-2008 as if he is the authorized signatory of the appellant in appeal No.E/1242/2011. In fact Shri V.K. Janakiram is no way connected with the appellant in that case. The GPA is in favour of Sri Ashwin. Sri V.K.Janakiram is the father of the proprietor/appellant and during his cross examination, he stated before the original authority that his computer typed statement was recorded by physically assaulting his elder son by the officer of DGCEI by removing his clothes. He admitted to be the Managing Director of appellant firm in E/1266/2011. (....
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....tements should be supported by corroborative evidence. In the case on hand, if the department alleges that the raw materials were diverted without reaching the factory, then there should surely be evidence let in to show how the appellants have substituted the raw material since the statutory records show production and clearance of finished goods on payment of duty. There is absolutely no evidence to show the substitution of raw material which in my view would cut the root of the allegation as the statutory records show that goods were manufactured. No shortage of raw material was detected during enquiry. 9. Apart from the above, the statement of the transporter Shri Satish Agarwal has been retracted before a Magistrate and Sri Janakiram in cross examination retracted his statement and also deposed that his statement was recorded under duress. The case of the department is built-up mainly on these statements. As the statements have been retracted, there has to be some other evidence to conclude that the goods were not actually received. Whereas, the statutory records, weighment slips, job work challans, production register all stand in favour of the appellants. These documentar....