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2022 (3) TMI 1483
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....ithout supplying the goods and the buyers were making payment for the said goods in cheque and said party returning the said amount back to the buyers in cash. These transactions were recorded in the private ledger which was seized from the computer of M/s Suraj Ltd. The investigation revealed that one such buyer's name which appeared in the said ledger was the Appellant. The said ledger was also showing M/s Suraj had also received cash amounts on various dates from Appellant. On the basis of such information a search was conducted at factory premises of the Appellant and documents/ records/ Laptop were seized and statement of person was also recorded. Officers also conducted the search at transporters premises/offices and recorded the statements of persons. On the basis of investigation, the DGGI alleged that the appellants were indulged in evasion of Central Excise duty by way of fraudulent availment of Cenvat credit on the basis of invoices issued by M/s Suraj Ltdwithout receipt of goods. A show cause notice was issued for recovery of Cenvat credit of Rs. 8,14,80,722/- along with interest and penalty. The Adjudicating Authority confirmed the demand proposed in show cause notice ....
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....ustries 2012 (282) ELT 206 (Guj.) * Adhunik ferro Alloys Ltd. Vs CCE, Chandigarh -2009 (233) ELT 131 (Tri. Del) * Adhunik Steel Ltd Vs CCE, Ludhiana/ Chandigarh 2007 (213) ELT 97 (Tri Del) 2.3 Further, he submits that the DGCEI officers have conducted the stock taking and they did not find any excess stock of raw material or shortage of raw material. Therefore, when the accounted raw material vis-à-vis physical raw material are tallying, it support the contention of the appellant that all input/ raw materials referred hereinabove as allegedly not received from M/s Suraj Ltd. are in fact received and used in the manufacturing of final products and therefore, the quantity shown as balance in the raw material account tallied with the physical stock. This scientific based evidence cannot be brushed aside. The Ld. Adjudicating authority has also not considering this aspect and has solely confirmed the allegation raised without substantial proof in respect of the core issue of non- receipt of raw material. In support of this contentions he placed reliance on the following Judgments: * Askhay LPG Valves Vs CCE 2016 (337) ELT 129 (Tri. Hyd) * Monarch Metals Pvt. Ltd. Vs CCE....
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....06) ELT 1035 (Tri. Bang.) 2.5 He submits that the Learned Adjudicating Authority in para 31.1 and 32 at internal page No. 61 of the impugned Order-In-Original by placing reliance on the retracted statements and print outs which was recovered from the computers of M/s Suraj Ltd has wrongly held that it being a quasi -judicial can on the basis of pre-ponderance of probability arrive at the conclusion that the goods were not received by the Appellant. This finding is unsustainable as the Original adjudicating authority has failed to understand the difference between probability and assumption. This cannot be the basis for confirmation of demand. In support of this contention, he placed reliance on the following judgments: * CCE Vs Saakeen Alloys Pvt. Ltd. 2014 (308) ELT 655 (Guj) * Commissioner Vs Saakeen Alloys Pvt. Ltd. - 2015 (319) ELT A117 (SC) * Bhakti Alloys Pvt. Ltd. Vs CCE Vadodara-I 2016 (41) STR 554 (Tri.- Ahmd) * Siddharth Bronze Products Pvt. Ltd. Vs CCE Bhavnagar- 2015 (328) ELT 429 (Tri. Ahmd) * Commissioner Vs. Motabhai Iron and Steel Industries 2015 (316) ELT 374 (Guj.) * Akshay LPG Vales Vs CCE;, Hyderabad -IV 2016 (337) ELT 129 (Tri. Hyd.) * Monarch Me....
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....i. Del) * Ashutosh Metal Industries Vs CCE 2018 (15) GSTL 384 (Tri. Del) * Magnum Seel Ltd. Vs CCE 2017 (358) ELT 529 (Tri. Kol) * Shivam Steel Corporation Vs CCE 2016 (339) ELT 310 (Tri. Kol) * Premier Instruments & Controls Ltd. Vs CCE 2005 (183) ELT 65 (Tri.- Chennai) 2.9 He submits that statement of director of the Appellant's company has been retracted by executing an affidavit dated 29.10.2015. It is settled preposition of law that retracted statement cannot be used as evidence for fastening the duty liability. Statements are drawn by applying coercive measures does not have evidential value and therefore, cannot be relied upon because once it is retracted it loses its evidential value. Transporters' records without investigation with the truck drivers is not sufficient to deny the credit of inputs. The non-appearance of LR Nos. in the books of accounts does not lead to the conclusion that the goods are not transported without verifying the lorry nos. stated in the LR and its movement and the statements of drivers who actually delivered the goods. No corroborative evidence was produced by the department in supports of their allegation in the present case, hence deman....
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....i.-Del) - Laxmi Enterprises Vs. CC (Prev.) New Delhi * 2020 (372) ELT A33 (SC) - Laxmi Enterprises Vs. Commissioner * 2013 (295) ELT 116 (Tri. Bang) -Ramchandra Rexins Pvt. Ltd. Vs Commissioner * 2008 (225) ELT 267 (Tri. Del) -Sai Synthetics Processors Vs CCE, Surat -II * 2003 (152) ELT 352 (Tri.-Mum) ShaluDyg&Ptg Mills Vs CCE Surat * 2010 (251) ELT 123 (Tri- Kol) Shri Ram Rubber Products Vs CCE, Shilong * 2009 (241) ELT 348 (Bom) Shailesh AmulakhJogani Vs Union of India * 2017 (358) ELT 1149 (Tri. Del) -Prakash Industries Ltd Vs CCE Raipur * 2017 (358) ELT 1014 (Tri- Bang) Usman Suleiman Darvesh Vs. CCE Calicut * 2017 (350) ELT 474 (P&H) -CCE Panchkula Vs. Vardhman Strips Pvt. Ltd. * 2021 (376) ELT 476 (Mad) - K RahumanSait Vs CC, Trichy. * 2017 (346) ELT A149 (Guj.) - Principal Commissioner Vs. Rajputana Steel Casting Pvt. Ltd. * 2020 (372) ELT 321 (Chhattisgarh) - N.R. Sponge Pvt. Ltd. Vs CCE, Raipur 4. We have carefully considered the submissions made by both the sides and also co-appellants. The case of the Revenue is that Appellant have availed the Cenvat Credit merely on the strength of invoices issued by the supplier i.e. M/s Suraj Ltd. without phys....
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....d for in in books of account. The payment against the said invoices were made through cheques. The Revenue could not bring any evidence that the goods covered under the invoices were diverted to any other place. It is also not the case of the department that the appellant have procured some unaccounted inputs to cover up the quantity of input shown in the invoices. There is no evidence that the inputs shown in the invoices received by the appellant were not used in the manufacture of final product. Department has not disputed the correctness of quantity manufactured by the appellant recorded in their daily stock account. In the absence of any contrary evidence, the Cenvat credit cannot be denied to the Appellant. The supply of disputed goods has been admitted by the supplier namely M/s Suraj Ltd. that they have supplied the goods to the appellant along with the duty paid invoices. In that situation, weare of the view that the have taken proper care while receiving the goods in their factory to avail theCenvat Credit. 4.3 We also find that the case of the Revenue for denial of credit is on the basis of private ledger which was retrieved from seized computer of M/s Suraj Ltd. it is ....
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....e said activities." 4.4 Ongoing through the said provisions, we find that Section 36B (2) provides the conditions in respect of computer printouts. But, the said procedure has not been followed by the Revenue while relying on the said computer printout /ledgers. Therefore, the said printouts cannot be the piece of evidence to demand cenvat credit from the appellant. As can be seen, one of the conditions for the computer printout to be anadmissibleevidence is that the said printout should have been produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer. In the present case during the cross-examination the Director of M/s Suraj Ltd. as regard the said computer print out sheet stated that "I don't know when and from where the documents were recovered". The Adjudicating Authority has not examined these aspects.There is also no investigation to find out whether the said computer data were forming part of the regular books of accounts maintained by the appellant and already found placed in....
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....the assessee. The Tribunal has further found that it is an undisputed fact that all the purchases were duly recorded in the statutory books of the assessee and the goods were also found to be entered in its statutory records. That the Department-had not made any investigation at the unit of the assessee, which could have supported the findings of the Adjudicating authority. None of the consignors of the goods have denied the clearance of goods to the assessee. There was no evidence on record to show that the records maintained by the assessee were not correct. The Tribunal, was accordingly, of the view that on the basis of statements of some transporters which were not corroborated by any material on record, a huge credit could not be disallowed. It is under these circumstances that the Tribunal has set aside the demands and the penalties imposed upon the assessee and the co-noticees." 4.8 The Learned Adjudicating authority for denial of Cenvat Credit to Appellant also relied upon the documents/ records and statements of transporter. We find that apart from the above, there is no other evidence to reflect upon the fact that the inputs were not actually received by the appellant. H....