2019 (1) TMI 43 - AT - Central Excise

CENVAT Credit - fake invoices - credit denied on the ground that the appellants have received only invoices and not the goods - penalty - Held that - The Revenue has failed to prove that if the said inputs have not been received in their factory, then from where the inputs have been replaced by the appellants against those invoices - also, M/s Prime Metalloys Pvt Ltd have specifically mentioned that they have supplied the goods to the appellant. The investigation conducted by the DGCEI in this case is not proper and having various infirmities - the benefit of doubt goes to the favour of the appellants - credit allowed. Penalty - Held that - As Cenvat credit cannot be denied, therefore, no penalty can be imposed on the appellants. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against denial of Cenvat credit based on investigation conducted by DGCEI.

Analysis:
The appellants contested the denial of Cenvat credit in an appeal against the impugned order. The investigation focused on Sh. Amit Gupta, who facilitated the availing of inadmissible Cenvat credit without physically receiving goods. The DGCEI investigation implicated M/s Unnati Alloys Pvt Ltd (M/s UAPL) for issuing invoices without actual goods movement. Statements of employees of the appellant, M/s Akshit Enterprises Pvt Ltd, were recorded, leading to a show cause notice alleging improper Cenvat credit availing. Both authorities denied the credit, imposing penalties. The appellants challenged this decision, arguing lack of investigation into the suppliers' involvement in supplying goods, and the receipt of goods by the appellant.

The appellant's counsel highlighted the lack of investigation into M/s Unnati Alloys Pvt Ltd directors and the suppliers or transporters of the goods mentioned in the invoices. They emphasized that the appellant's staff confirmed receiving and using the goods for dutiable products, challenging the denial of Cenvat credit without concrete evidence. The Revenue countered, citing Amit Gupta's admission of fraudulent invoicing and fake transporters, supporting the denial of credit based on DGCEI's investigation findings.

After hearing both sides, the judge considered the submissions, noting the failure to investigate key parties like M/s Unnati Alloys Pvt Ltd directors and suppliers. The judge found discrepancies in the DGCEI investigation, highlighting the lack of evidence to prove non-receipt of inputs by the appellant. Mentioning M/s Prime Metalloys Pvt Ltd's confirmation of supplying goods to the appellant, the judge ruled in favor of the appellants due to insufficient evidence supporting the denial of Cenvat credit. Consequently, the judge held that penalties cannot be imposed when Cenvat credit is not denied.

The judge further criticized the investigation's selective approach, omitting key parties like Amit Gupta and the suppliers from the show cause notice. This selective method rendered the investigation unsustainable, leading to the order's setting aside. Ultimately, the appeals were allowed, overturning the denial of Cenvat credit and penalties imposed on the appellants.