TaxTMI 
TaxTMI 
2022 (11) TMI 1071
X X X X Extracts X X X X
X X X X Extracts X X X X
....egistered dealer companies inter-alia namely (i) M/s Brilliant Metals (P) Ltd., New Delhi (herein after referred as "M/s BMPL") (ii) M/s Unnati Alloys (P) Ltd., Jaipur (herein after referred as "M/s UAPL") (iii) M/s Moral Alloys (P) Ltd., Delhi (herein after referred as "M/s MAPL") etc. and is issuing the invoices with intent to passing on inadmissible Cenvat credit to numerous manufacturers and dealers without delivery of the goods with the invoices. The manufacturers used to procure the market scrap without bills on cash basis and did not account for the same in their books of account. To cover up such unaccounted purchases and to avail cenvat credit, they used to procure Cenvatable invoices of prime metal from the dealer companies operated by Shri Amit Gupta without being accompanied with the goods. 3. It was also gathered that the manufacturers used to make payment by cheque/RTGS to the respective companies of Shri Amit Gupta and subsequently, Shri Amit Gupta returned the cash to the manufacturers after deducting his commission. To show the fictitious transportation, he used to issue the GRs of defunct transporter namely, M/s Leo Trans & Logistic. Further, the owners whose v....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unt was proposed to be recovered from the appellant along with interest and proportionate penalty. The proposal was confirmed initially vide Order-in-Original No. 05/2017-18 dated 29.12.2017. However, the appeal thereof was allowed vide Order-in -Appeal No. 1112 -1113 /2018 dated 9.10.2018 allowing the appeal of the present respondent-assessee along with the co-noticee. Being aggrieved with the order of Commissioner (Appeals) department is before this Tribunal. 7. We have heard Shri Sanjay Kumar Singh, Authorised Representative for the Revenue, and learned Shri Vijay Kumar, Advocate for the respondent -assessee. 8. Learned Authorised Representative in support of Departmental appeal has submitted that the statement of Shri Amit Gupta contains the clear admission of fictitious transportation by using registration number of vehicle, of defunct transport firm, namely M/s. Leo Trans and Logistics and M/s. Leo Road Lines Pvt Ltd. The Directors thereof in their statement have denied to have transported any such consignment. The Original Adjudicating Authority, based upon the documents had rightly concluded that M/s. Mittal Pigments Pvt Ltd. have availed the Cenvat credit fraudulentl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on arises for getting low quality raw material that too without any invoices. Otherwise also the appellant had been subject to regular audit by the department and no such allegations were ever made by the Department against the respondent-assessee. The findings of Commissioner (Appeals) have been impressed upon as legal and justified. Thus the order under challenge is prayed to be upheld. 10. Learned Counsel has further impressed upon that based upon the same set of circumstances and same searches of 06.12.2012 and the same set of statements of Shri Amit Gupta and Shri Sanjeev Maggu this Tribunal has decided various other appeals of dealers similarly placed as M/s. Mittal Pigments Pvt Ltd. viz, in Excise Appeal No. 50844 & 50857/2018 M/s. Moral Alloys Pvt. Ltd. and M/s. Unnati Alloys Pvt. Ltd. vs CCE , Udaipur [Final Order No. 52055-52056/2018(SM) dated 29.05.2018] and in Excise Appeal No.E/52844/2018 M/s. Synergy Steels Pvt. Ltd. vs CGST & CCE, Alwar [Final Order No. 50673/2019 dated 15.03.2019]. The appeal is prayed to be dismissed. 11. We have heard the rival contentions. We observe and hold as follows: The findings of Commissioner (Appeals) with respect to the impugned....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Once the ambit of Section 9D(1) is thus recognized and understood, one has to turn to the circumstances referred to in the said sub-section, which are contained in clauses (a) and (b) thereof]. Clause (a) of Section 9D(1) refers to the following circumstances : (i) when the person who made the statement is dead, (ii) when the person who made the statement cannot be found, (iii) when the person who made the statement is incapable of giving evidence, (iv) when the person who made the statement is kept out of the way by the adverse party, and (v) when the presence of the person who made the statement cannot be obtained without unreasonable delay or expense." If none of the circumstances contemplated by said clause (a) of Section 9D(1) exists, clause (b) of Section 9D(1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be admitted in evidence. Under this procedure, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D(1), viz. (i) the person who made the statement has to first be examined as a witness in the case before ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a as was recorded on 06.12.2012 there is no other document on record to corroborate the documents alleged to be incriminating, as were recovered by the Officers of DGCEI during the investigations. The apparent fact on record remains are that the said Amit Gupta was cross-examined on 10.04.2018 with respect to his said statement dated 06.12.2012. The perusal of said statement specifically answers to question No.7 & 8, makes it clear that his statement of 06.12.2012 was got recorded under threat or pressure. He was brought to the office of DGCEI in the investigating officer's vehicle and, as such, was not at all mentally alert while giving the said statements. Answer to question No.9 therein clarifies that he denied having any share holding in the business activities of Forward Mineral & Metals, M/s. Unnati Alloys Pvt. Ltd. & M/s. Moral Alloys Pvt. Ltd." 16. In the present case, Shri Amit Gupta was not even allowed to be cross-examined by M/s. Mittal Pigments Pvt Ltd. But, as judicially noticed, the answers given by him while his cross-examination by M/s. Unnati Alloys in the above noted appeal extend same benefits in favour of M/s. Mittal Pigments Pvt Ltd. also. It has also been ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een held by this Tribunal that there are no justifiable reasons to deny the Cenvat Credit nor to impose penalty upon the appellants. The similar order has also been passed by this Tribunal in Final Order No.51800 - 51808/2018 dated 11th May, 2018 vide which the orders passed against the appellants on similar set of facts and circumstances were set aside. In that order also it was observed by the Tribunal that Departments entire case is solely based on the statement of Amit Gupta and other transporters for which no cross-examination was provided. As already discussed above, the only differentiating fact for the present case is that both the said persons have duly been cross-examined recording a clear retraction of their earlier statements. 13. With regard to the payments by Cheque also the Tribunal has observed that the Revenue's allegation of receiving the payments back in cash is not sustainable, for want of any evidence to that effect. Though some cash was seized from the premises of Amit Gupta but there is no connecting document produced by the Department in evidence to show that the said cash pertains to the impugned three invoices. The said decisions were announced in followin....