TaxTMI 
TaxTMI 
2021 (12) TMI 1148
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as that of copper ingots were received by them physically in their factory premises. On the basis of the said show cause notice, the information was called from the Additional Commissioner (AE) Central Excise Commissionerate Alwar and pursuant to the reply response to that information that Show Cause Notice dated 25.5.2017 was issued to the M/s. Sypher Impex Alloys Pvt. Ltd. Prior to issuing the said Show Cause Notice, there was already a search in the premises of M/s. Sypher Impex Alloys Pvt. Ltd. on 09.04.2013 with Panchnama of the even date. During investigation it was observed that M/s. Sypher Impex Alloys Pvt. Ltd. has issued the invoice bearing No. 67, 69 and 90 dated 8.6.2012, 10.6.2012 and 2.7.2012 respectively of the appellant herein involving CENVAT Credit amounting to Rs. 5,82,384/- however, without supply of any material. Resultantly, a show cause notice bearing Number 1145 dated 28.6.2017 was served upon the appellant as well proposing the recovery of said amount of CENVAT Credit along with the interest of the proportionate penalties upon the appellants company as well its Managing Director and the authorised signatory. The Director of the M/s. Sypher Impex Alloys Pvt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of generating fake invoices is not sufficient to prove that the invoices issued in the name of appellants were also fake. Order accordingly is prayed to be set aside. Appeal is prayed to be allowed. 4. To rebut the submissions learned Departmental Representative has impressed upon massive investigations carried out by the Department to unearth the racket of issuing CENVAT Creditable invoices with an intent for passing the ineligible CENVAT Credit to appellants manufacturers without supplying the goods . The same has resulted in fake CENVAT Credit even by the appellants which is very much contravention of CENVAT Credit Rules, 2004. Hence there is no infirmity in the order passed by the Commissioner (Appeals). The appeals in hand is prayed to be dismissed. 5 After hearing the rival contentions perusing the entire records, I observe and hold as follows: The investigation in the present case originated with the search in the premises of M/s. Sypher Impex Alloys Pvt. Ltd. way back in the year 2013 and when the Show cause notice issued to said M/s. Sypher Impex Alloys Pvt. Ltd. on 25.5. 2017, it has been alleged against the said company that M/s. Sypher Impex Alloys Pvt. Ltd. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and the transporter used to receive Rs. 100/- per biltie. This witness stated that the blank bilties books of M/s. Chauhan Transport service was also provided Shri Yogesh Singh who was the owner of not only of M/s. Shri Lord Venkateshwar Metal and Alloy Company, Khushkhera, Alwar but also of M/s. Star Delta Exim Pvt Ltd. Khushkhera, Alwar M/s. Sypher Impex Alloys Pvt. Ltd., Bhiwadi , M/s. Skyward Rolling and Allows Pvt Ltd. Khushkhera, Alwar. Again there is no mention about any of the present appellants to have been involved in any of the arrangements between M/s. Sypher Impex Alloys Pvt. Ltd. and Shri Yogesh Singh and the transportrs or the other companies who would have received the cenvatable invoices from said Shri Yogesh Singh/ M/s. Sypher Impex Alloys Pvt. Ltd. without delivery of goods so as to fraudulently avail wrong CENVAT credit but none of the statements have specifically pointed about the similar involvement of any of the appellants who otherwise have been alleged by the Department. There also have been a statement of Shri Praveen Naruka who was the owner of premises which was existing manufacturing unit of M/s. Sypher Impex Alloys Pvt. Ltd. He has acknowledged that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... evidence. The relevant case law in the case of Bajrangbali Ingots & Steel Pvt. Ltd. & Suresh Agarwal vs. CCE, Raipur in Appeal No. E/52062 & 52066/2018 heard on 16.11.2018, which is held as follows:- "9. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon'ble Allahabad High Court decision in the case of Continental Cement Company Vs. Union of India - 2014 (309) ELT 411 (All.) as also Tribunal's decision in the case of Raipur Forging Pvt. Ltd. Vs. CCE, Raipur-I - 2016 (335) ELT 297 (Tri.-Del.), CCE & ST, Raipur Vs. P.D. Industries Pvt. Ltd. - 2016 (340) ELT 249 (Tri.-Del.) and CCE & ST, Ludhiana Vs. Anand Founders & Engineers - 2016 (331) ELT 340 (P&H). It stand held in all these judgements that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods." 8. It is well settled law that there has to be some concrete evidence which would show clandestine manufacture of goods, as w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by other manufacturers, first or second stage dealers or even by the transporters cannot be read against the appellant. I draw my support from the decision of Hon'ble High Court of Allahabad in the case of Commissioner of Central Excise, Customs and Service Tax vs. Juhi Alloys Ltd. reported as [2014 (302) ELT 487 (All.)] where it was held that though the invoice of manufacturer issued in the name of registered dealers was found fake, though the manufacturer of import was not found existing but it would be impractical to require the assessee to go behind the records maintained by the first stage dealer. Once assessee is found to have acted with all reasonable diligence in its dealings within the meaning of Rule 9 (3) of Cenvat Credit Rules, 2004 will amount to casting an impossible or impractical burden on the assessee and same would be contrary to the rules. Tribunal, Chennai also in the case of Adhi Alloys Pvt. Ltd. vs. CCE, Ludhiana reported as [2017 (346) ELT 113] has held that demand on the grounds of invoices being issued by non-existent dealer without delivering goods, in absence of any corroborative 10 E/51045 & 51044/2019 [SM] evidence to show that assessee has no....