2017 (3) TMI 1504 - AT - Central Excise

CENVAT credit - non-existent dealer - fake invoices - denial on the ground that the dealer M/s S.K. Garg & Sons who has supplied the goods to the respondent is non existence and he has merely issued invoice not the goods - Held that - no investigation conducted at the end of manufacturer/supplier or the transporter to reveal the truth whether manufacturer/supplier has supplied the goods in question to M/s S.K. Garg & Sons or the transporter has transported the goods to the premises of the respondents which is vital evidence to reveal the truth - M/s S.K. Garg & Sons was registered dealer during the impugned period and all the ER-1 returns were filed by M/s S.K. Garg & Sons which were accepted by the department - in the absence of any corroborative evidence to show that the respondents have not received the goods, it cannot be alleged against the respondents that they have received the invoices and not the goods merely on the ground that there was not storage facility specifically when the landlord made a statement that the godown was let out to the dealer - the cenvat credit cannot be denied to the respondents - appeal dismissed - decided against Revenue.

Summary

Issues:
- Cenvat credit denial based on non-existence of supplier
- Lack of investigation on goods receipt by the appellant
- Acceptance of ER-1 returns by the department
- Precedent cases on cenvat credit denial

Analysis:
1. Cenvat credit denial based on non-existence of supplier:
The appeal concerned the denial of cenvat credit to the respondent due to the alleged non-existence of the supplier, M/s S.K. Garg & Sons. The investigation revealed that the premises of the supplier were locked and non-existent, leading to the cancellation of their registration retrospectively. The Revenue contended that the respondent received invoices but not the goods, as the supplier was found to be non-existent. However, the Commissioner (Appeals) allowed the cenvat credit, emphasizing that the credit was based on specified documents meeting legal requirements and correlating with duty paying documents issued by the manufacturer.

2. Lack of investigation on goods receipt by the appellant:
The Preventive Officers found M/s S.K. Garg & Sons to be non-existent, engaging in issuing fake invoices for cenvat credit. The Revenue argued that as there was no storage capacity at the supplier's premises, cenvat credit should not be allowed. However, the respondent maintained they physically received and utilized the goods in manufacturing final products. The absence of investigations with the transporter or manufacturer/supplier regarding goods receipt was highlighted as a crucial gap in evidence.

3. Acceptance of ER-1 returns by the department:
The respondent's submission included the acceptance of ER-1 returns filed by M/s S.K. Garg & Sons, indicating compliance with departmental requirements. This fact, along with the lack of incriminating statements from the respondent and the physical receipt of goods as claimed, supported the argument for allowing cenvat credit.

4. Precedent cases on cenvat credit denial:
The judgment referenced a precedent case involving M/s Dhawan Steel Industries, where cenvat credit denial was overturned due to insufficient evidence supporting the allegation of non-receipt of goods from the supplier. Relying on this precedent and another case, the Tribunal upheld the impugned order, dismissing the Revenue's appeal. The absence of investigations at the supplier or transporter's end was deemed crucial in determining the denial of cenvat credit to the respondent.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the impugned order and emphasizing the necessity of corroborative evidence to support allegations of non-receipt of goods in cases involving cenvat credit denial based on supplier non-existence.