2018 (3) TMI 609

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....ister was not maintained and the statements of Shri. Bhojraj Teli, Managing Director and Chairman of appellant company, octroi records were also relied upon. The adjudicating authority confirmed the demand of Cenvat credit and also imposed equal amount of penalty against which appellant came before the Commissioner(Appeals) who set aside the Order-in-Original and allowed the appeal therefore Revenue is in appeal before me. 2. Shri. Ajay Kumar, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the ground of appeal submits that inquiry from RTO, Octroi Check post established that goods were not received by the respondent therefore credit was rightly disallowed by the Original adjudicating authority hence the order....

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....ng judgments; 4. I have carefully considered the submissions made by both sides and perused the records. 5. I find that Cenvat credit was proposed to be denied on the RTO report, Octroi report. The RTO report in respect of only 13 invoices therefore same cannot be used to deny cenvat credit in respect of 800 invoices. As regard the 13 vehicles, Managing Director/Chairman of the respondent company has stated as under: "I have gone through letter number Dy.RTO/NM/TR.Tax/10/ON.2403/10 dated 13.3.2010, from the Deputy RTO, Navi Mumbai, stating that vehicle number MH-43-5110 is an Ambulance, letter number 5654/Dy.RTO/PEN/2010 dated 22.3.2010 from the Deputy RTO, Pen, Raigad, stating that vehicles bearing numbers MH06-K-9463, MH06-....

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.... and recorded his findings as under : "7. I have gone through the written as well as oral submissions made by the Appellants and other available case records. I find that the only dispute in this case is that whether the Cenvat credit is admissible to the Appellants which is alleged to be taken without receipt of the input during August 2006 to January 2011, the period covered in the impugned two Orders-in-Original. 7.1. The undisputed fact of the case is that during the period under consideration i.e. for the period from August 2006 to January 2011 the Appellants had manufactured and cleared SP machines on payment of duty. It was however alleged that the Appellants did not receive the input during the said period. The all....

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....d to deny was about 813, combined for the four SCNs. It thus appears that the percentage of the cases taken for sample checking as against total invoices considered for denial of Cenvat credit is very miniscule (about 1.5%). The investigations also do not indicate as to whether the said 13 invoices, where the vehicle numbers were found to be incorrect, cover all the suppliers and whether the percentage of invoices selected was proportionate to the number of 61 Noices of each supplier The Adjudicating Authority has also not given any findings that how these 13 invoices can form the basis of denial of Cenvat Credit for all the 813 invoices which spread over a period of five years from 2006-07 to 2010-11. 7.2. Further, I find that the....

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.... as to whether the impugned goods were supplied to the factory of Appellants. The said authorities have reported the type and make of the vehicles owned by the suppliers falling in their respective jurisdiction. I however do not find any co-relation being established in the SCN vis-`-vis Orders-in-Original between these vehicle numbers and the input invoices of which the Cenvat credit is proposed to be denied. The Appellants on this count have claimed that 98% of the invoices contained in the SCN are in respect of the goods procured from the local suppliers. I find from the records that M/s Pioneer Ispat Pvt. Ltd. is the main supplier of the Appellants. It is seen that around 50% or more input consignments are procured from M/s Pioneer Ispa....