TaxTMI 
TaxTMI 
2022 (2) TMI 544
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....he Cenvat credit so availed appeared not admissible to them. Accordingly, based on the intelligence, the factory premises of M/s. Taha Wires Pvt. Limited was searched by the officers of DGCEI on 10.02.2006 and again on 21.12.2006 and relevant documents/ records were resumed under respective Panchnamas. Further, during the course of investigations, several other documents/ records were also resumed under Section 14 of the Central Excise Act, 1944. As part of investigation, material as well as oral evidences were also collected from:- (i) Various Road Transport Authorities to ascertain the names of the owners, nature of vehicles load carrying capacity etc. in respect of purported transportation of inputs to the factory of M/s. Taha Wires Pvt. Limited. (ii) Custom House Agents, who cleared and transported imported consignments from ICD, Tughlakabad to Shahdara/ UP border. (iii) The owner/ operator of the vehicles shown to have used for transportation of imported consignments from Delhi to M/s. Taha Wires Pvt. Limited, Daman (iv) Transporters who had shown to have affected the transportation of goods from Delhi to M/s. Taha Wires Pvt. Limited, Daman ....
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....Authority passed the impugned order-in-original dated 16.07.2019 whereby he dropped the proceedings show cause notice dated 03.10.2007. Being aggrieved by the impugned order-in-original dated 16.07.2019, the Revenue filed these appeals against M/s. Taha Wires Pvt. Limited, Daman, Shri Kamilbhai Z. Vashi, Director of M/s. Taha Wires Pvt. Limited, Shri Rajesh Sharma, Proprietor of M/s. Kamya Transport Company, Delhi, Shri Navrattan Lal Sharma, Transporter of M/s. Singal Road Carriers, Delhi and Shri Satish B. Agarwal, Partner of M/s. Time & Space Haulers, Mumbai. 4. Shri G. Kirupanandan, learned Superintendent (AR) appearing on behalf of the Revenue- Appellant reiterates the grounds of appeal. 5. On the other hand Shri Willingdon Christian, learned Counsel appearing on behalf of the Respondents filed a synopsis dated 15.10.2020 and argued the contents of the said synopsis which is taken on record. 7. We have heard both the sides and perused the record. The entire case of the Revenue is that the respondent have not transported the goods from ICD, Tughlakabad to Daman but the same was diverted somewhere else. Accordingly, the respondent are not eligible for Cenvat credit in re....
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....i Rajesh Sharma and Shri Sanjay Sharma and come to the conclusion. The said piece of statement cannot be used as evidence and on this basis it cannot be concluded that there is diversion of goods in or around Delhi. We find that in the grounds of appeal, it is nowhere disputed that statement of Shri Sanjay Sharma bears no signature, therefore on this basis learned Adjudicating Authority has not taken into consideration the statement of Shri Rajesh Sharma. Therefore, we do not find any infirmity in such finding. 11. As regards the grounds in the findings of the Adjudicating Authority in Para 30.3.3.4(b)(i), the same is reproduced below:- "considering the statement of the local transporters at Delhi and CHA which has been relied upon it is found that the statements are stereo typed copies mostly disclosing only the vague places in Delhi, where the duty paid imported Copper was unloaded No statements of the local vehicle drivers are relied. As per the settled law, the vehicle drivers could identify the exact place where the allegedly diverted imported copper was unloaded & further movements de trucked This not being done & no recipients of such diverted Copper at Delhi ide....
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....he destination in this case." From the above, we find that since the statement of the persons of M/s. Singal Road Carriers retracted in cross-examination, the statement cannot be used as an evidence. Therefore, we find it proper on the part of hhe Adjudicating Authority for not accepting the documents to prove non-transportation of goods from Delhi. 14. We find that the grounds of appeal is based on assumption and presumption and not on direct and cogent evidence. We find that the Adjudicating Authority has relied on CESTAT decision in the case of Gujarat Victory Forging Pvt. Limited wherein she recorded findings that the investigations made with M/s. Time & Space Haulers and M/s. Singal Road Carriers have not been upheld by the CESTAT and held that this binding decision will result in setting aside all charges in the show cause notice. The Revenue in the grounds of appeal stated that the said CESTAT decision in the case of Gujarat Victory Forging Pvt. Limited has not attained finality for the reason that the facts of Gujarat Victory Forging Pvt. Limited are different from the facts of the present case. On going through the said judgment, we find that the Respondent's case....
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....ve the facility of furnace, Rolling Mill etc. to convert Copper Ingots/Bars/Craps into wire rods. 18. There is absolutely full proof of record of every single consignment of total 124 consignments having been received by the job workers and returned the job worked goods to the respondent in terms of Rule 4(5)(a) of Cenvat Credit Rules, 2004 read with Notification No. 214/86-CE. The crucial facts about receipt of disputed inputs and its utilization for the manufacture of final product stand corroborated and proved by the following statutory-cum-official documentary evidence: a) RG23A Part-I & II maintained by the Respondent b) Full payment through Bank to the various suppliers. c) Payment to CHAs and transporters by cheque or by cash as per law. d) Job work challans in Annexure-II, Registers maintained in Annexure-IV by the Appellant and Annexure-V by the job worker for processing of the disputed inputs in to intermediate product in terms of Rule 4(5)(a) read with Notification No.214/86-CE. 19. We find that Revenue has not questioned on the investigation of statutory and official documentary evidence of respondent. In the cross-examination o....
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....e investigation is not conclusive against these transporters. It cannot be concluded that the goods have not been transported to Daman. It is further seen that Shri Atul Navrattan Lal Sharma representative of M/s. SIngal Road Carrier was cross-examined, has categorically deposed that they had actually transported the disputed inputs as per LRs and received all payments from the Respondent for the transportation. Similarly, Shri Sanjay Sharma, CHA from M/s. R.U. Import Export Pvt. Limited has also categorically deposed that his statement was involuntary and that he had arranged for transport of the disputed inputs to Surat/Daman. 22. We also found that there is not a single statement of any supplier to the effect that the disputed inputs were not supplied to the Respondent and were supplied to some third parties. There is no evidence that some third party have made payments to the suppliers of the disputed inputs. The statements of transporters are not corroborated with any evidence. The entire case of the department is based on the record of the transporters and only on the basis of third party statements or record, the demand for denial of Cenvat credit cannot be sustained. It ....
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....uilt up mainly on recorded statements of a few transporters of the disputed inputs. As the statements were retracted or contradicted during cross-examination, there has to be some other evidence sufficient to conclude that the disputed inputs was actually not received. The statements of co-accused necessarily need to be corroborated by some independent evidence. On the other hand, statutory records, job work challans, job work registers, RG23A Part-I & II records etc., all stand in favour of the respondent. Since all these statutory records are not under dispute then the burden rests heavily upon the Revenue to establish with cogent evidence that the inputs were not actually received in the factory. Mere third party evidence like transporter's statements, RTO reports, Check Post records etc. which were not examined cannot suffice to prove the department's case. 25. The respondents rely on the following judgments:- (a) 2014 (313) ELT 449 (Tri. Ahmd.) Nissan Copper Pvt. Ltd. vs. CCE (b) 2016 (337) ELT 129 (Tri. Hyd.) Akshay LPG Valves vs. CCE (c) 2015 (325) ELT 910 (Tri. Ahmd.) STI Industries vs. CCE 26. In the above judgments also, the job work recor....