2016 (6) TMI 462 - AT - Central Excise

CENVAT Credit on the strength of bogus invoices - Held that - As the entire case of Revenue is based on the statements of various persons and even the impugned order records a finding that the statements of the persons are inconsistent and contradictory. I find that the Commissioner (Appeals) in the impugned order observed that the respondents were unable to give any evidence such as, gate register, lot register, L.R, payment particulars etc. so as to prove that the invoices were accompanied with the goods, thereby eligible for the availment of credit. Thus, the entire focus of the investigation is on the transport of goods. In such circumstances, when the truck no. are mentioned on the invoices, denial of cross-examination of the transporters who claimed that they had not transported the goods in incorrect and leads to denial of proper opportunity to the appellant. In view of the above, the impugned order is set aside and the matter is remanded to the original adjudicating authority to decide the matter afresh after allowing the cross-examination of the transporters.

Issues:
1. Alleged CENVAT Credit taken on the basis of bogus invoices.
2. Reliance on statements of transporters and an Alert Circular.
3. Cross-examination of key witnesses not allowed.
4. Commissioner (Appeals) decision favoring Revenue.
5. Lack of documentary evidence to prove receipt of goods.
6. Inconsistencies in statements of involved parties.
7. Remand to original adjudicating authority.

Analysis:

Issue 1: Alleged CENVAT Credit based on bogus invoices
The case revolves around the appellant allegedly taking CENVAT Credit on the strength of bogus invoices. The Revenue's argument is primarily based on the Alert Circular issued by the Thane-I Commissionerate and statements of transporters indicating non-movement of goods to and from the factory. The original adjudicating authority dropped the demand, but the Commissioner (Appeals) reversed this decision, concluding that the balance of convenience favored the Revenue.

Issue 2: Reliance on statements of transporters and Alert Circular
The appellant argued that the Circular was issued after the relevant invoice date and, therefore, the invoices cannot be deemed bogus. The appellant also sought cross-examination of transporters and another individual involved in arranging transport, emphasizing that the details on invoices indicated the use of transporter services. The learned AR relied on the impugned order, highlighting the untraceability of the supplier of goods.

Issue 3: Cross-examination of key witnesses
The appellant's counsel contended that denial of cross-examination of transporters and the intermediary person was unfair, as their statements formed a crucial part of the case. The lack of cross-examination raised doubts on the validity of the statements and their acceptance as evidence.

Issue 4: Commissioner (Appeals) decision favoring Revenue
The Commissioner (Appeals) set aside the original order, emphasizing the fraudulent availing of inadmissible CENVAT Credit based on bogus invoices without the movement of goods. Various statements were found to be inconsistent and contradictory, with the absence of documentary evidence to prove the goods' receipt. The focus of the investigation was on the transport of goods, leading to the decision favoring the Revenue.

Issue 5: Lack of documentary evidence to prove receipt of goods
The appellant failed to provide documentary evidence such as gate registers, lot registers, payment particulars, etc., to substantiate that the invoices were accompanied by goods, hence eligible for credit. This lack of evidence weakened the appellant's case and supported the Revenue's argument.

Issue 6: Inconsistencies in statements of involved parties
The Commissioner (Appeals) noted inconsistencies in statements of various individuals involved in the case, including directors of the appellant company and other related parties. These inconsistencies raised doubts about the credibility of the statements and the overall case presented by the appellant.

Issue 7: Remand to original adjudicating authority
Ultimately, the Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority. The decision was based on the denial of cross-examination of transporters, which was deemed crucial for a fair assessment of the case.

This detailed analysis highlights the key arguments, evidentiary issues, and the Tribunal's decision to remand the case for further review, emphasizing the importance of fair procedures and cross-examination in legal proceedings.

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