2017 (11) TMI 476

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....05, the appellant imported aluminium scrap for use as input for manufacture of the said final product. Additional Duty of Customs (CVD) paid on such imported goods was availed as Cenvat credit by the appellant. Based on certain investigation conducted by DGCEI, it was alleged by the Department that M/s. Nikhil Shipping Agency (CHA), instead of delivering the goods at the factory premises of the appellant, had diverted the goods as per the Bill of Entry to M/s. Rajmothi Extrusions Pvt. Ltd., Ahmadabad. On the basis of investigation conducted by the DGCEI, the Department initiated show cause proceedings against the appellant, seeking denial of the Cenvat Credit availed by it. The matter was adjudicated vide order dated 16.09.2011, wherein Cen....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....n of the same to third party entirely lies with the Department, which have not been satisfactorily discharged by the Revenue. 4. On the other hand the ld. D.R. appearing for the Revenue submits that the goods were diverted to M/s. Rajmoti Extrusions Pvt. Ltd. and in absence of receipt of the goods as per the description mentioned in the Bill of Entry, taking of Cenvat Credit by the appellant is not in confirmity with the statutory provisions. He also referred to the Bill of Entry No.921778 dated 21.07.2005 and ERE Form issued by the local authorities to show that the goods were cleared from Customs custody on 30th July, 2005, whereas the ERE form was signed at Mumbai on 29.07.2005 i.e. before movement of goods from the Port of Import. Thus....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rized goods under the cover of BOE No.921777 & 921778 dated 21.07.2008. Also I find that the above view is further substantiated from the contradictory statement given by Shri K.Prabhakar Rao, Authorised signatory who failed to depose true and correct facts regarding import and disposal of 39.240 M.T. Aluminium scrap under the cover of Bill of Entry No.921777 & 921778 dated 21.07.2005. Thus, I find that Appellant No.1 through M/s. Nikhil Shipping Agency (CHA)Partner Shri Bhimsen B. Singh had knowingly and intentionally diverted the goods in the local market in cash and availed Cenvat credit without using the said quantity of Aluminium scrap in the manufacture of finished goods and in this manner Appellant No.1 fraudulently availed Cenvat Cr....