TaxTMI 
TaxTMI 
2019 (9) TMI 1588
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....les, 2002. 3. Brief facts of the case are that on the basis of specific information received by the DGCEI that one Shri Amit Gupta, Director of M/s Progressive Alloys India Pvt. Limited alongwith other associated registered dealers were passing on inadmissible cenvat credit on the basis of cenvatable invoices of non-ferrous metals to the manufacturers of excisable goods without physical delivery of the goods. A search and seizure took place in the premises of the said Shri Amit Gupta and M/s progressive Alloys India Pvt. Limited. In the course of investigation and search it was revealed that Shri Amit Gupta was operating with other registered dealers, registered with the Central Excise Department and engaged in trading in non-ferrous metal and passing of inadmissible credit without actual delivery of goods. The other dealers were M/s Brilliant Metals Pvt. Ltd., M/s Forward Minerals and Metals Pvt. Limited, M/s Unnati Alloys Pvt. Limited, M/s Moral Alloys Pvt. Limited. In the course of enquiry, statement of Shri Amit Gupta who was managing the aforementioned companies and/ or registered dealers, stated that he was engaged in import of metals like copper, nickel, zinc and tin in p....
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....he said GR books did not belong to them and further the logo of Leo printed on the GR books was different from their logo printed on the GRs. He further stated that these are bogus GR books having name similar to their transport company and appears to be misused by Shri Amit Gupta without their knowledge. 6. Further Shri Amit Gupta was summoned to produce bank statements of the bank accounts maintained by his dealer companies in various banks alongwith balance sheet, ledger accounts, invoices issued for sales to pass on credit. In response Shri Amit Gupta produced only bank statement of M/s Progressive Alloys India Pvt. Limited and M/s Brilliant Metals Pvt. Limited. 7. Thus, it appears that Shri Amit Gupta is the master mind operating various dealers companies in his name and name of his relatives. 8. The officers of the DGCEI searched various premises of M/s Progressive Alloys India Pvt. Limited alongwith its associated registered dealers on 06.12.2012. and in follow up action, summons were issued to the appellant on 05.04.2016, in respect to which Sh. Shiv Kumar Garg, authorised signatory of appellant appeared before the officers and recorded his statement on 25.04.2016 ....
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....become the admission on the part of the appellant. 10.1 The supplier has arranged the material from elsewhere as per the bills of other manufacturers, but in any case, the appellant had received the material against all those bills against which appellant availed the cenvat credit. Further, appellant have paid the duty, on the clearance/ sales of the goods for which the said material (input) was consumed. In case, as alleged, appellant had not received the material against those bills, then the onus lies on the department to prove where from the appellant received the material (inputs) which have been consumed in the manufacture of final products which were sold / cleared on payment of Central excise duty. In view of assumption and presumption of non-receipt of goods, simply on the basis of the statement of a third party, is not sustainable in law, until and unless it is corroborated with any other evidence and with other material which would have been used into manufacture of final products which were cleared on payment of duty. 10.2 Rule 15(2) is subject to the provisions of Section 11AC of the Central Excise Act, 1944 which envisages the provisions of suppression of facts,....
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....Accordingly, since there was no positive mis-declaration by the assessee, rather, the facts were duly declared in the monthly returns submitted by the assessee, hence the allegation of suppression of facts with regard to availment of cenvat credit is not established and therefore the extended period of limitation as provided under proviso to Section 11A of the Central Excise Act, 1944 is not invokable. Since there is no suppression of facts, fraud or collusion as explained above and bills have been received alongwith the goods, recovery of cenvat credit, in any way, is not sustainable in law. Even the said transactions have been duly reflected in the sales tax documents, being statutory, are not extraneous material and may be verified from sales tax department and may be relied upon accordingly. Since there is no wrong availment of cenvat credit, interest should not be demanded under the provision of section 11AB of the Central Excise Act, 1944. However, the Tribunal in the case of its main party i.e. M/s Progressive Alloys India Pvt. ltd. has dropped the proceedings and allowed the appeal. The Tribunal in para 30 of its F. O. No. 51800-51808/2018 dt. 11.05.2018 has held as under:-....
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....ut no cross examination of the witnesses was provided to the appellants. One of the witnesses has retracted his earlier statement. Surprisingly, in the instant case, no inquiry was made from the customers of the appellant company. All the transactions related to inputs purchased was duly recorded in the book of accounts and inventory records. The appellant have purchased the goods from the registered dealer. When it so, then it is expected by the department to make a inquiry about the genuineness of the supplier. The appellant had been subjected to regular audit by the department and no such allegation was ever made. Shri Nitin Agarwal, Executive of the company on 4.2.2016 and 14.2.16 had repeatedly mentioned that they have received the goods in the factory and were duly accounted in the books of accounts and entered in stock account. The appellants have not made any payment to the transporter towards freight for these consignments. Therefore, the appellant was not concerned about the vehicle number mentioned in invoices as the goods will have to reach the appellants premises on the basis of FOR". 13. In the facts of the present case also, we find that the appellant Shri Shiv Ku....