TaxTMI 
TaxTMI 
2022 (3) TMI 1483
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....ing sales invoices of scraps to its buyer without 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 confirme....
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....Ltd. Vs. CCE, Chandigarh - 2015 (319) ELT 339 (Tri. Del) • Commissioner Vs Dhanlaxmi Tubes & Metal Industries 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....
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....) ELT 673 ( Tribunal) • Supreme Industries Ltd. Vs. CCE 2014 (314) ELT 589 (Tri.- Mumbai) • Eureka Conveyor Belting Pvt. Ltd. vs CCE 2011 (272) ELT 285 (Tri. Del) • Bhavani Transformers Pvt. Ltd. Vs CCE - 2006 (206) 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 ....
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....no affidavit as mandated under the provisions of Section 36B of Central Excise Act, 1944 are produced by the department by placing reliance on computer sheet which does not bear the signature of the author therefore such statement does not have evidentiary value. He placed reliance on the following decisions: • S.N. Agrotech Vs CCE 2018 (361) ELT 761 (Tri. 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 ....
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....eceipts of the goods and they also deposited part amount. He also submits that the adjudicating authority has elaborately dealt with all the points raised by the appellant. Adjudication order should be upheld in its entirety. He placed reliance on the following decisions: • 2018 (5) TMI 1456 - CESTAT, New Delhi - Guruharkrishan Industries Vs CCE, Delhi • 2019 (1) TMI 909 - CESTAT, Bangalore - KK Plastics Vs CST, Cochin • 2018 (361) ELT 1054 (Tri.-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. C....
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.... material you purchased from M/s Rajputana, you made payment by cheque and whatever your supplied to M/s Rajputana, you received the payment by cheque. In a nutshell, there were no cash transaction. Is it true or false? Ans. True, all transaction were made through cheque and there were no cash transaction." The above facts are established that the appellant have received the inputs from M/s Suraj Ltd. in their factory. 4.2 We further find that the appellant have recorded the receipt of the goods in their cenvat account i.e. RG-23A-Pt. I and Pt. II and the said disputed inputs used in the manufacture of dutiable goods. The purchase of the goods under the invoices in question were accounted 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 ....
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....awful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the 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 comput....
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....n mentioned in the panchnama of search at the factory premises of Appellant in respect of the stock of finished goods/inputs. Nothing has been brought on record to show as to how Appellant produced their final products in the event of not having received the inputs in their factory. 4.7 The Hon'ble Gujarat High Court in the case of Commissioner v. M/s. Motabhai Iron & Steel Industries - 2015 (316) E.L.T. 374 (Guj.) on the identical situation, dismissed the appeal filed by the Revenue. It has been held as under:- "19. From the findings recorded by the Tribunal, it is apparent that payment to M/s. Vasmin Corporation in respect of purchases as made through banking channels. Under the circumstances, the Tribunal has lightly held that the demand cannot be confirmed against 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 go....