2016 (12) TMI 389 - AT - Central Excise

Demand - CENVAT credit - bulk drugs and intermediates falling under Chapter 29 of the CETA - non-existent raw materials - Held that - The allegations are founded on investigation conducted against other parties and the appellants herein have been implicated merely on the basis of assumptions drawn in regard to the evidences/materials pertaining to such parties. It is also to be mentioned that Shri S. Vinod Kumar who is associated with M/s Aerochem has deposed that he has been working with these companies for the last 18 years and was looking after loading and unloading of material at the godowns. This statement is in total contradiction to the case setup by department that no goods at all were supplied by M/s Aerochem and that all the transactions were being fabricated by issuing fake invoices only. This together with the fact that appellant has been discharging huge amount of duty and the invoice being only a single invoice, which the appellant has been able to establish with documentary evidence maintained in the course of business, that the goods have been received in the factory, I am of the view that the allegation raised against the appellant in the show cause notice cannot succeed. The department has failed to establish conclusively that the appellant has not received the goods in to the factory with regard to the disputed invoice - demand not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues: Alleged fraudulent availing of cenvat credit based on an invoice, confirmation of demand, interest, and penalty, discrepancy in receipt of goods, evidence of receipt and usage of materials, allegations against the appellant, findings of investigations, sustainability of demand.

Analysis:
1. The case involved allegations of fraudulent availing of cenvat credit by the appellants based on a specific invoice. The investigations conducted by the department revealed discrepancies in the receipt of goods related to the disputed invoice. The lower authority confirmed the demand of the amount mentioned in the invoice along with interest and imposed penalties. The appellant challenged this decision through an appeal.

2. The appellant's counsel presented evidence to establish the receipt of the material mentioned in the disputed invoice and its usage in the manufacturing process. Documents like gate entry records, goods receipt notes, weighment slips, and invoices were submitted to support the claim. The discrepancies pointed out by the department regarding vehicle numbers and net weight of goods received were explained satisfactorily by the appellant. The counsel argued that the appellant had no reason to fraudulently avail cenvat credit given their substantial excise duty payments and foreign exchange earnings.

3. The department reiterated its findings from the investigations, highlighting the use of fake documents and dummy invoices to avail fraudulent credits. The investigations revealed a chain of transactions involving non-existing firms and fake invoices. The department stressed the non-existence of a firm mentioned in the invoices as evidence of fraudulent practices.

4. After hearing both sides, the tribunal focused on the specific disputed invoice for the supply of Acetonitrile. Despite the department's allegations of non-receipt of goods, the tribunal found that all records maintained by the appellant indicated the receipt of goods. The discrepancies in vehicle numbers and weight were explained to the satisfaction of the tribunal. The tribunal noted that the department's allegations were based on assumptions drawn from investigations against other parties and lacked conclusive evidence against the appellant.

5. Ultimately, the tribunal found the demand unsustainable and set aside the impugned order. The appeal was allowed, granting consequential reliefs if any. The tribunal concluded that the department failed to conclusively establish that the goods mentioned in the disputed invoice were not received by the appellant.