TaxTMI 
TaxTMI 
2019 (4) TMI 19
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed two consignments of capital goods viz. Electronic Driven Rapier Weft Feeding System (3700 MM and 5350 MM) vide Invoice No.84 and 85 dated 10.05.2011 and 11.5.2011 of M/s. Satabadi Tie-Up (P) Ltd., 17, Nabin Chandra Das Road, Kolkata-700 090. The assessee further claimed that since the said capital goods were installed on loom no.1 and 3 in their factory, they took cenvat credit of the duty paid thereon in their capital goods credit account as per the following entry:- E. No. Cenvat A/c wrongly taken (capital goods) Amount (BED) 50% Ed.Cess S. & H.Cess Total 34/18.5.2011 123750 2475 1237 127462 35/18.5.2011 81250 1625 812 83687 02/01.04.2012 123750 2475 1238 127463 03/01.04.20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e machinery parts stated to have been installed on loom no.1 and 3 were the same as received by the assessee under the cover of impugned invoices. 5. Whereas, in his statement dated 24.01.2012, Shri Vishnu Murarka, Proprietor of the transporter i.e. M/s.Round India (Regd.), 68, Cotton Street, Kolkata, revealed that the related consignment Note No.JS-01 dated 10.05.2011 and JS-02 dated 11.05.2011 had been issued by him on the request of one Shri Suresh Saraogi for a consideration of Rs. 200; that neither the booking nor any transportation was arranged in this regard and only consignment note/bill were issued; that on receipt of the cheque of the billed amount and after getting the said amount deposited in the bank, he paid back the money ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 123750 2475 1237 127463 51975 20/08.10.2013 35/18.5.2011 81250 1625 812 83687 34125 21/08.10.2013 02/01.04.2012 123750 2475 1238 127463 33412 22/08.10.2013 03/01.04.2012 81250 1625 813 83688 21938 23/08.10.2013 Total 410000 8200 4100 422300 141450 7. Under the aforementioned facts and on inquiry by the Revenue, it appeared to Revenue that the appellant appears to have not received the capital goods and have taken cenvat credit, which appeared to be not admissible to them. Accordingly, the show cause notice dated 4.7.2014 was issued proposing to demand cenvat credit of Rs. 4,22,300/- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pital goods i.e. Electronic Driven Rapier Weft Feeding System (3700 MM and 5350 MM) installed and functioning with the machines. Further, the appellant has admittedly received the capital goods, which was purchased by way of upgradation of their manufacturing machinery. The appellant has also utilized statutory documents viz. waybill - form VAT-47 under the State VAT Rules. Such declaration is pre-authenticated document issued by the Sales Tax Department, which is machine serialed and the appellant maintains proper records of the usage of such way bills, which are part of its sales tax records. In the copy of the VAT-47, Invoice No. and date along with the amount, name of transporter, Sl.No. and the truck no. are also mentioned. Further, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e show cause notice dated 28.06.2013 issued to Satabadi Tie-Up (P) Ltd., have been adjudicated vide order-in-original No.40/Commr/CGST & CX/KOL/North/2018-19 on 30.10.2018 holding the transaction as sham and demanding the duty collected, under Section 11 D of the Act, along with penalty. 10. Having considered the rival contentions, I find that the show cause notice is defective for non-joinder of essential parties. Also there is lack of sufficient evidence by the Revenue. Further, I find that the appellant has discharged its onus as required by them under Rule 9(6) of the Cenvat Credit Rules, as it is an admitted fact that the particular machinery part/capital goods were found available in their factory at the time of inspection. The Rev....