TaxTMI 
TaxTMI 
2016 (6) TMI 912
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....dulent availment of Cenvat credit on invoices obtained from a registered dealer, without actual receipt of goods investigation was conducted. On scrutiny of input invoices for the period February, 2003 to March, 2007, it was revealed that AEPL availed credit mainly on three items ie. Aluminium wire rods, Aluminium rolled products of various types and Aluminium ingots. The allegation of fraudulent availment of credit is confined with regard to certain consignments of aluminium wire rods and aluminium rolled products. Their major supplier of input was Karnataka Metal Company(KMC) who is a registered dealer. KMC procured goods from M/s Agarvanshi Aluminum Ltd(AAL) M/s Bharat Aluminium Company Ltd (BALCO) M/s Steel and Metals, Aluminium India, Adarsh Aluminium Corporation (AAC) and NALCO. Investigation showed that KMC sold the goods in local market without issuing sale bills. KMC then issued Cenvatable invoices to AEPL and other manufacturers without actual supply of goods. APEL availed credit on such invoices without receipt of goods. 3. A search was conducted in the residential premises of Shri Prabhakar who was the Manager of KMC. Some private records were resumed. Basing upon th....
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....00,000/- was imposed under Rule 25 of Central Excise Rules, 2002. A penalty of Rs. 1,00,000/- was imposed on M/s KMC under Rule 25 of Central Excise Rules, 2002 and Rule 13 & 14 of Cenvat Credit Rules, 2002/2004. Separate penalty of Rs. 1,00,000/- was imposed on Shri Sueresh Tibrewala Managing Director of M/s AEPL. 5. The appellants filed appeal, and vide the order impugned herein the Commissioner (Appeals) upheld the demand of credit of Rs. 8,20,779/- along with interest and equal penalty was imposed. The confiscation of finished goods valued at Rs. 50,81,200/- and imposition of penalty of Rs. 1,00,000/- in lieu of confiscation was set aside observing that the goods are not physically available for confiscation and hence not maintainable. The penalty of Rs. 1,00,000/- imposed on AEPL was reduced to Rs. 50,000/-. The penalty of Rs. 1,00,000/- imposed on Shri Suresh Tibrewala was sustained. The appellants are thus before the Tribunal. 6. The learned counsel appearing for the appellants submitted that the whole case is made up on mere inferences and assumptions. The allegation is based upon the private records/note books/slips etc. resumed from the residence of Shri Prabhakar w....
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....d pursuant to search at the residence of Shri Prabhakar. Again, the Commissioner (Appeals) vide order dated 04-12-2009 in Order in-Appeal dated No.99/2009 has set aside the demand raised against M/s Khaitan Electrical Ltd., which was also pursuant to search and seizure of private records of Shri Prabhakar. The Commissioner(Appeals) vide Order 11-12-2009 in Order-in-Appeal No.101/2009 set aside the demand raised against M/s Shri Lakshmi Industries and also set aside the penalty of Rs. 4,00,000/- imposed on KMC. The Commissioner(Appeals) vide Order No.26, 27 and 28/2010 dated 26-02-2010 set aside the demand raised against M/s Prism Airtech and also set aside the penalty imposed against KMC. The learned counsel submitted that all these cases were initiated upon the search conducted in the premises of Shri Prabhakar. The statement of Shri Prabhakar and the documents resumed from his residence, have been elaborately scrutinized in these decisions. He pleaded that the appeals may be allowed. 8. The learned AR Sheri M.K.Mall, Shri Dora Reddy and Shri V.J.Manvatkar supported the findings in the impugned order. They submitted that there is no evidence that the statement of Shri Suresh Ti....
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.... form local market there is no iota of evidence to establish this. Further none of the drivers or transporters have been examined. The analysation of evidence in the decisions of connected cases is noteworthy. 10. In Order-in-Appeal No.99/2009, dated 04-12-2009 in the appeal filed by Khaitan Electrical Ltd and KMC, the Commissioner (Appeals) observed as under: As discussed, if the desired thickness is not actually supplied by KMC, the basis for production of blades of standard thickness and/or the alternate source of sheets of desired thickness needed to be identified. The implied or implicit meaning of the charge made is that the sheets of thickness 0.25 and 3.00 have actually been invoiced but have been diverted either by KMC or the appellants and in its place; sheets of desired thickness have been substituted. However, except for the presumption, there is no support to the implied charge by any documentary evidence. Also, there is no incentive for such substitution as the price range of the sheets is more or less same and such sheets are manufactured only by reputed manufacturers and clandestine source of procurement from such manufacturers is not possible except tha....