TaxTMI 
TaxTMI 
TaxTMI 
2020 (11) TMI 725
X X X X Extracts X X X X
X X X X Extracts X X X X
....he investigations done by the department from the Municipal Corporation as well as the Postal Department that no such godown / premises in the name of M/s Dankuni Steel Ltd existed at the declared address. 2. It is also the case of the department that the Appellants availed input service tax credit of Rs. 1,30,534/- covering 5 invoices, on loading/unloading/transportation charges (GTA services) paid to a transporter, M/s Silverstone Infra Projects Pvt. Ltd, in respect of the above goods, for the same period, without any actual transportation taking place. 3. During the course of investigations, the department recorded the statement of Shri Sankarshan Mohapatra, General Manager (Taxation) of the Appellants, on 07.02.2017. Shri Mohapatra confirmed receipt of 11460.450 MTs of LAM coke from M/s Dankuni Steel Ltd during the years 2011-12 and 2012-13, under 5 (five) invoices, and that Cenvat credit had been availed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Shri Madhusudan Saha. 7. The adjudicating authority, vide his Order-in-Original No 40/JC/BOL/17-18 dated 26.03.2018 confirmed the full amount along with interest and imposed equivalent penalty on the appellant company. He also imposed a penalty of Rs. 10,00,000/- on Shri Aditya Jajodia and Rs. 5,00,000/- on Shri Sankarshan Mohapatra ( the other 2 appellants). 8. This Order dated 26.03.2018 was challenged by the appellants before Commissioner (Appeals), who, vide his Order-in-Appeal No 138-140/BOL-CE/2019-20 dated 11.07.2019, dismissed the appeals. Against this Order all the three appellants are now before us. 9. Shri A. K. Prasad, the learned Advocate has made the following submissions on behalf of the appellants :- 9.1 None of the grounds raised in the appeal before the Commissioner (Appeals) have been discussed or rebutted by the Commissioner (Appeals). Hence, it is not a speaking order. 9.2 No panchnama was drawn by the departmental officers of having carried out any physical verification of the godown/premises of the registered dealer at ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot found at the address mentioned in the invoice, Cenvat Credit could not be denied. Following decisions may be referred to : i) Commissioner Central Excise Bangalore-1 vs Bhuwalika Steel Industries Ltd. 2012 (277) ELT 153 (Kar). ii) Commissioner of Central Excise Ludhiana vs Dhawan Steel Industries 2015(324) ELT 169 (Tri.-Del) iii) Surya Steel Industries Ltd. vs. Commissioner of Central Excise Chandigarh-I 2017 (346) ELT 128 (Tri-Chan) 9.6 The existence of the trading company, M/s Dankuni Steels Ltd, could not be denied as they were very much operating at their Bentinck Street address and had proper VAT Registration. In fact, all the 5 disputed invoices mention the address of 8, Bentinck Street, also. 9.7 The cross-examination of Shri Sanjay Surekha, M.D of Dankuni Steels Ltd as well as of Shri Sanjay Banthia authorized signatory of M/s Concast Bengal Industries Ltd was denied by the adjudicating authority only &n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rom a registered trader without accompanying goods, it does not automatically mean that the same modus-operandi was adopted by all buyers of raw materials from the same supplier. [(1966) 17 STC 465- State of Kerala vs C. Velukutty]. Evidence is required to be produced in each case. 9.9 There is no evidence to show that the dealers' register, in Form RG-23D, was ever scrutinized by the department to ascertain the backward link with the inputs received by the dealer, M/s Dankuni Steels Ltd. Each disputed invoice mentions the specific sl no of the RG23D register maintained by M/s Dankuni Steels Ltd. 9.10 The appellants had provided the following documents to the investigating officers much before the issue of the instant show cause notice, vide letter dated 12th June, 2015 . These documents were enough to establish genuineness of the purchase of LAM Coke from M/s Dankuni Steels Ltd. These documents were neither considered by the adjudicating authority nor the appellate authority. i) Copy of the Tax Invoice cum Excise Invoice ii) Copy of the Road Cha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellants and utilized in the manufacture of duty paid finished goods. 9.14 The department did not conduct any stock taking of LAM Coke at the factory premises of the Appellants to verify as to whether the stocks were consistent with the quantity claimed to have been received by Appellants . If only invoices had been issued by Dankuni Steel Ltd, without accompanying goods, stock taking would have revealed a shortage of 11460.460 MTs of LAM Coke. There is no evidence of this. 9.15 The department also did not carry out any analysis / study as to whether the quantity of finished goods ( Pig Iron/Hot Metal) produced by the Appellants, during the relevant period, was consistent with the claim of the Appellants regarding receipt of the above quantity of raw materials, i.e. LAM Coke. 9.16 If, as alleged by the department, only invoices had been received by Appellants ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ul misstatement or suppression of facts by the appellants. 9.22 In view of the above, the department has not been able to make out a case for denial of Cenvat Credit of Rs. 1,28,39,142/- in respect of inputs. 9.23 The inputs which came to the railway siding in the appellants factory premises were further transported within the factory premises to the storage area by trucks belonging to M/s Silverstone Infra Projects Pvt. Ltd. The Service Tax of Rs. 1,30,534/- paid to the transporter and borne by the appellants is clearly available as Cenvat Credits to the appellants. 10. The learned Authorized Representative reiterated the findings of the Appellate order and submitted that the appellants had knowingly availed credit on the basis of fake invoices. He urged that the appeals be rejected. 11. Heard both sides through video conferencing and perused the appeal records. 12. We find that the main basis of denying ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the disputed quantity of LAM Coke was actually received in the factory. 19. The department did not also make any enquiry to determine whether the quantity of finished goods manufactured by the appellants was consistent with the consumption of the disputed quantity of inputs. 20. In the absence of the above it has to be presumed that the disputed quantity of LAM Coke was duly received in the appellants' factory and used in the manufacture of finished goods. 21. The appellants had provided the Railway Receipts (RR's) under cover of which the inputs had come. The disputed invoices have crossreferences of the corresponding RR's. The department made no efforts to verify the genuineness of the RR's. 22. Hence, it cannot be said that the invoices received in the appellants' factory were not accompanied by duty paid goods. 23. In any case, it is now established law that the mere nonexistence of a dealer at the registered premises will not disentitle the recipient from availing cenvat credit. The case of Commissioner Central Excise Bangalore-1 vs Bhuwalika Steel Industries Ltd. 2012 (277) ELT 153 (Kar) may be referred to i....