2019 (2) TMI 399

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....ppellants was not available to them. Thus respondents were asked to show cause as to why- "(1) CENVAT Credit of Rs. 70,22,939/- (Rs.68,18,367/- Basic Excise duty + Rs. 2,04,552/- Education Cess) (Rupees Seventy Lakhs Twenty Two Thousand Nine Hundred and Thirty Nine only), as detailed in Annexure to this notice should not be demanded and recovered from them under Rule 14 of the CENVAT Credit Rules, 2004 read with proviso to sub-section (1) of Section 11A of the Central Excise Act, 1944; (2) Interest at appropriate rate should not be demanded and recovered from them under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11AB of the Central Excise Act, 1944: (3) penalty should not be imposed on them under sub-rule (2) of Rule 15 of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944" 2.2 After considering the submissions made by the respondents, Commissioner have adjudicated the case dropping the demand. 2.3 Aggrieved by the order of the Commissioner, revenue has filed this appeal. 3.1 In their appeal appellant revenue has raised the following grounds: i. The show cause notice has been issued in respect of twelve invoices....

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....piece of paper/ chit which was destroyed after preparation of bills; e. he charge fare on the basis of trip undertaken and not on the basis of quantity of material transported accordingly quantity was not mentioned on the bills; vi. Municipal authorities at Octroi Naka forwarded 16 copies of B forms showing the octroi collected in respect of the three vehicles belonging to Gangar Transport. Only in case of one Form B No 001100111803200807460000001151748 dated 18.03.2008 name of the respondents appeared and the commodity mentioned was cathode. No other details such as weight, invoice number and date tallied with the goods transported on that day. In all other form B, name of respondents did not appear and also the material was shown as scrap, waste and powder of hardened rubber, parts, fabric of noil silk, light diesel oil, matti powder, coir mattress fibre, waste foundry matti etc. vii. After considering the submissions made by the appellants adjudicating authority has held - a. Respondents had intimated about hiring of the godown at Bhiwandi to revenue in April 2007; b. The evidences produced by the respondents negated the dispositions made by the ....

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....the jurisdictional Assistant Commissioner under Rule 8 to store goods outside the factory premises. g. The allegation in show cause notice is not vis a vis the admissibility of CENVAT Credit on the inputs but is for non receipt of the goods against which the credit has been taken. h. During course of investigation both documentary and oral evidences were collected and put on record which showed that the goods against which credit has been taken were never received by the Respondents. However Commissioner ignored all the evidences and decided the matter in favour of appellant. i. Adjudicating authority failed to appreciate that alibi. Is not per se, defence rather it is simply evidence that will require as acquittal, if, when all the evidence is considered, reasonable doubt is raised as to the defendants guilt. In the present case where there is total defiance of normal business and commercial transactions and also in following the provisions as laid down by law, such plea of alibi will not be available. j. Tribunal has in case of Everest Metal works [2009 (2389) ELT 79 (T-Del) held that onus is on the person who claims the credit to show that he ....

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.... Arguing for the respondents, learned advocate submitted that i. During the course of proceedings before Commissioner they had produced evidences to show that the goods had been actually received by them. Commissioner has considered those evidences while deciding the matter. Appeal of revenue, without disclosing the reasons for discarding those evidence cannot be sustained; ii. The evidences produced by the revenue to allege that goods have not been received by them are incomplete and uncorroborated circumstantial evidences. iii. CENVAT Credit has been availed only after the receipt of goods under particular invoice of supplier and the entries were made in stock only after receipt of complete goods under the invoice. iv. Rule 8 is applicable only after the CENVAT Credit has been taken. In their case only the goods against which no credit has been taken were stored in Bhiwandi and subsequently transported to Kandivali factory. v. The documents against which the goods were cleared by M/s HCL Khetri are valid documents in terms of Rule 9 for taking the CENVAT Credit. vi. They have not defied any norms of goods business and commercial practices or any provisions of Ce....

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....15.31 17 17.4.08 584928 1747 28.2.08 RJ18GA1829 813 28.2.08 15.77 19 19.4.08 602502 1753 29.2.08 RJ18GA0531 814 29.2.08 5.18 309 18.3.08 197905           183.82     7022939 5.3 Intelligence was received that goods covered by the above mentioned invoices never reached the designated buyer/ consignee, but were delivered at or near GTKarnal Road. 5.4 Enquiries made with transporter, M/s Haryana Transport Company Gothra (Khetrinagar) [Transporter] and M/s Kisan Truck Union [Provider of Vehicles to transporter] revealed that in 8 out of twelve cases the destination was Bhiwandi an d in remaining four cases the transporter had given instructions on the consignment notes to the effect "As per party's instruction material will be unloaded at G J Carriers Delhi UP Border Ghaziabad." 5.5 Statements of the driver of the truck No RJ142G3632 (Shri Sahiram s/o Shri Bhataram), RJ 142G5235 9Sri Radheyshyam s/o Shri Sardararam), RJ18GA1829 (Shri Krishna Kumar s/s Shri Hari Singh), RJ 18G 3555 (Shri Sandeep s/o Shri Harinarayan) and RJ 18GA0956 (Shri Mahavir s/o Shri ....

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....ises. Since prima facie there was sufficient evidence to conclude that the credit against the invoices of M/ HCL Khetri has been taken by the appellants without actual receipt of the goods by them show cause notice was issued to them for denying the credit taken by them. Commissioner adjudicated the case and dropped the demand. 5.12 The basic reason for dropping the demand being that Commissioner found on the basis of two octroi documents submitted by the respondents to evidence movement of 5.1 MT of liberator cathode purchased from HCL under invoice N 1753/ 29.02.2008 from Bhiwandi to Kandivali. On the basis of this he negated all the evidences adduced by the revenue to show that the goods have not moved to the premises of the respondents in Kandivali. The approach of Commissioner appears to be erroneous evidence in respect of movement of each consignments and its receipt in the factory premises was needed to be examined and specific finding recorded. In absence such finding the order of Commissioner fails the test of reasonability and needs to be set aside on this ground only and matter remanded back to him for consideration of the evidences put forth in the show cause notice ....