TaxTMI 
TaxTMI 
2018 (8) TMI 942
X X X X Extracts X X X X
X X X X Extracts X X X X
....se intercepted a truck bearing registration no. HR-38-M-4236 at Bahalgarh Chowk, Sonepat which was found to carry 15275 Kgs of SS Ingots loaded from the factory premises of the appellants without any bill/invoice apart from a weighment gate pass no. 120 dt. 07.03.2013 and a weighment slip bearing no. 5132 dated 07.03.2013 of Balaji Dharamakanta, Bahalagarh. Statement dt. 7.03.2013 of the driver Sh. Md. Harun was recorded under Section 14 of Central Excise Act, 1944 on the spot wherein he inter-alia admitted that he was carrying 15275 Kgs of SS Ingots in his truck no. HR-38-M-4236 from the appellants' firm without any invoice/bill of the same except a weighment slip bearing no. 5132 dt. 7.3.2013 of Balaji Dharmakanta. Sh. Ram Avtar Garg, Dir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ving duty of Rs. 75,520/-. The adjudicating authority vide Order-in-Original dated 28-03-2015 confirmed the demand along with interest and imposed penalty under Section 11AC of the Act read with Rule 15 of Cenvat Credit Rules, 2004. The appellant preferred an appeal against the said adjudication order. Their appeal was rejected by the Commissioner (Appeals). Aggrieved from the same, the appellant have filed this appeal. 2. Ld. Consultant for the appellant submits that they are not contesting the demand relating to clandestine removal of SS Ingots as the same has been already confessed by the Director in his statement. On the second issue, he admitted that they had committed the mistake by availing Cenvat credit without receiving the good....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llacious. He also pleaded that the appellant have made no plea on the issue of penalty in their written pleading. Hence, the same cannot be pleaded at this stage. On the second issue, Ld. AR submitted that the Director of the appellant had explained non availability of inputs on the ground that they had sent the goods to M/s Aseem Global Ltd., Faridabad for cutting. However, Sh. Vinay Kumar, accountant of M/s. Aseem Global Ltd., Faridabad had given statement that they did not have any machinery for cutting. He read out para 11.1, 11.2 and 11.3 of the adjudication order to show that Aseem Global Ltd does not undertake cutting at all, which showed contradictions in the statement of the Director of the appellant. He also contended that invoice....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of M/s NGI, Mohan Nagar categorically stated that they were doing job work and such goods were received on job work challans only. Evidently, the said ingots were being cleared clandestinely to evade duty. As the appellant are not contesting this demand, the same is upheld along with interest and penalty. 6. On the second issue, I find that 15534 Kgs of Nickel Cathodes uncut shown in RG-23A Part-I was not found physically in the factory premises of the appellants whereas the appellants had taken credit for the same on 6.3.2013 on the basis of transporter copy. Sh. Ram Avatar Garg in his statement dt. 7.3.2013 stated that the goods were not received physically in their factory because it was uncut and it comes to their factory after cutt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the assessee had deliberately fabricated their record to irregularly avail inadmissible credit. I also find that the appellant came up with a different version in their written submissions before the adjudicating authority. The contradictions in the statement of Sh. Ram Avatar Garg and changing versions clearly indicate that the appellant is desperately trying to concoct an alibi for their admitted mistake. The contention that entries in Register 23-A were made under duress has not been backed by any kind of corroborative evidence. In this regard, I am in agreement with the findings of the adjudicating authority in para 11.7 extracted below: "11.7 I do not agree with his contention advanced by the assessee. Pertinently, it is admitted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e goods were received, the appellant became entitled to the Modvat credit in that case. On the contrary, in the present case, there is no evidence that goods were actually received by the appellant and the Director of the appellant has given statement under Section 14 of the Central Excise Act, 1944 admitting their mistake and debiting the Cenvat credit. In the case of Modern Ex-Servicemen Engg. Pvt Ltd (supra), the Cenvat credit was held as admissible as the payments for all the inputs were made by the appellant through cheques and the appellant had shown the utilisation of inputs in the manufacture of their final product, which was cleared on the payment of duty. No such evidence of payment by cheques and utilisation of inputs has been ad....