TaxTMI 
TaxTMI 
2016 (12) TMI 916
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....ation (KMC), who is a dealer, Appeal E/2771/2010 is filed by M/s. Agarvanshi Aluminium Ltd., (AAL) who is engaged in manufacture and Appeal E/293/2011 is filed by department in which KMC is the respondent. The parties are hereafter referred to as assessee and department for convenience. 3. The allegation in appeal No. E/2770/2010 are that KMC who is a dealer, issued CENVATable invoices without delivery of goods to M/s. Bhargavi Die-Cast Pvt. Ltd., and thus indulged in availing fraudulent credit by M/s. Bhargavi Die-Cast Pvt. Ltd. The allegation in appeal No. E/2771/2010 are that M/s. AAL, who are manufacturers of aluminium rolled products cleared goods clandestinely and issued invoices to KMC who issued these invoices to M/s. Bhargavi Die-....
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....Karnataka Metal Company. He adverted to the various judgments passed by the Tribunal in the case of the appellant namely Karnataka Metal Company as well as Agarvanshi Aluminium Ltd., and that M/s. Srilaxmi Industries (SLI). In Final Order Nos. A/30267-30269/2016 and A/30028-30029 dated 20.01.2016, the Tribunal had analyzed the evidence unearthed from the said investigation proceedings against various assesses and had reached the conclusion that the evidence recovered from the residential premises of Shri. Prabhakar, as well as the entries therein or his statement are not sufficient to establish that the appellants/assesses were indulging in the activity of fraudulent availment of credit. 6. The Ld. AR, Shri. Arun Kumar appearing on behalf ....
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....eging fraudulent availment of credit basing upon the private records recovered from residential premises of Shri. Prabhakar. In another appeal No. E/2705 and 2706/2010 in the case of Srilaxmi Industries and others vide Final Order No. 30028-30029/2016 dated 20.01.2016 also, this Tribunal had gone into the details of the very same evidence. The Tribunal in the said cases, concluded on such analysis that the department was not able to establish diversion of material or substantiate the fraudulent availment of credit. One important aspect that has to be looked into is that when department alleges that no raw material was supplied by KMC and AAL to M/s. BDCPL and that only invoices were issued, the department has to prove how M/s. BDCPL could m....
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....ired 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....
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....he notice and as per his own admission, has been actively engaged in issuing inputs under kacha bills to unidentified manufacturers in and around Hyderabad" 11. In Order-in-Appeal No.26, 27, 28/2010, dated 26-02-2010 in the appeals filed by M/s Prism Airtech & KMC, the Commissioner(Appeals) observed as under: "The burden is on the investigation to prove that the appellants have merely received Cenvatable invoices without the accompanying materials. As rightly contended by the Appellants, had there been any non/short receipts, then it would have got reflected in their inventory and there would be negative balances at the end of the financial year, which however is not the case. Hence, I find adequate force in the contention of the appell....