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2019 (7) TMI 5 - AT - Central ExciseCENVAT Credit - inputs - Copper Ingots / imported Ingots / Bars - demand of ₹ 18,39,876/- has been made on the ground that the Appellant has availed credits on the basis of invoices issued by M/s AIPL, Ludhiana - transporters refused transportation and reports from check-posts of Commercial Tax and Transport Departments - demand of ₹ 64,57,520/-, the imported goods, which were purchased by the Appellant on high sea sale basis from Sri Lanka were alleged to have not been received and credit was availed without receipt of goods - HELD THAT - In case of goods received from M/s AIPL, the transporters were engaged by M/s AIPL and the Appellant had made all inclusive payments to the suppliers, as per the understanding. There is no dispute about the fact that the Appellant had made payment to M/s AIPL through banking channels and the goods were duly entered in the accounting and statutory records of the Appellant. Similarly, in case of imported ingots purchased on high seas sale basis, payment was made to the importers through banking channels and even the payment to CHAs for clearance of goods was made by the Appellant. In case of such imported goods, the goods were transported by the importers as the Appellant has made all inclusive payments to them. Similar is the situation in case of 26 consignments purchased by the appellant from M/s Shri Vaishnudevi Metals, Jammu. The statutory and private records maintained by the Appellant clearly show the payments towards the goods as well as accounting of goods in their records and further usage and use in production. The finished goods manufactured out of such inputs have been cleared on payment of duty. The appellants were not concerned or engaged in deputing the transporters. We find that though the reports from transport or commercial department check post states that the goods did not crossed the border posts, however in case of 24 trucks the documents bears stamp of check post. Thus for the reasons that the LRs do not bear the check-post stamp, it cannot be concluded that the goods did not pass through the transit state. The third party records, i.e. transporters record or their statements, cannot be made basis for alleging contravention by the Appellant. In a plethora of cases relied upon by the appellant, it has been held that the statements of transporters being merely third party / co-accused cannot be solely relied upon to confirm serious charges and merely because the said check-post records do not show movement of vehicles from its record. Revenue has also alleged that the payment received by the sellers / suppliers of the goods were received back by the appellant. However, there is no evidence of flow back of funds to the appellant. There is no whisper about the person who has given any amount on such alleged fictitious purchases back to the appellant nor any evidence of such flow back has been found. Shri V.K. Gupta, director of the appellant company, in his statement has categorically stated that they have received the goods and the same were used by them in the production of finished goods. There is no admission by any of the employees of the appellant or directors that they did not receive the impugned goods. The Revenue did not conduct any investigation to ascertain if the goods allegedly not received by the appellant were diverted elsewhere - The Revenue has asked for the information from one or two check-posts, whereas during the transfer of goods from Jammu / Ludhina, ICD Tuglakabad, the trucks passed through various check posts. It is common that some of the truck drivers in order not to pay local tax or/ toll tax for some other reason, take their vehicle through alternate routes. In such case, only on the basis of check-post report, it cannot be concluded that the trucks did not transport the goods to the appellant factory. In case of M/S MOTABHAI IRON STEEL INDUSTRIES AND OTHERS VERSUS CCE AHMEDABAD-II 2014 (2) TMI 63 - CESTAT AHMEDABAD , the Tribunal in similar situation has held that the demands are not sustainable. The demands and penalty made against the Appellant, M/s Gujarat Victory Forgings Pvt Ltd and penalty imposed on Shri V.K. Gupta are not sustainable - Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Denial of Cenvat credit based on alleged non-receipt of goods. 2. Reliance on transporters' statements and check-post reports. 3. Allegations of fraudulent transactions and issuance of bogus invoices. 4. Non-granting of cross-examination of transporters. 5. Absence of evidence for flow back of funds to the appellant. 6. Use of third-party records for alleging contravention. Detailed Analysis: 1. Denial of Cenvat Credit Based on Alleged Non-Receipt of Goods: The demands were raised on the basis that the appellant availed Cenvat credit without actual receipt of goods. The goods in question were Copper Ingots and imported Ingots/Bars purchased from various suppliers, including M/s Annapura Impex Pvt Ltd (AIPL) and others. The adjudicating authority confirmed the demands along with penalties, relying on the statements of transporters and check-post reports which suggested that the goods did not pass through the check-posts. 2. Reliance on Transporters' Statements and Check-Post Reports: The show cause notices alleged that the transporters denied transporting the goods and that the check-post reports indicated that the vehicles did not pass through the check-posts. The appellant argued that the transporters were engaged by the suppliers, and they had made all-inclusive payments through banking channels. The Tribunal found that the goods were duly entered in the appellant’s accounting and statutory records and that the payments were made through banking channels. The Tribunal held that the third-party records, like transporters' records or their statements, cannot be the sole basis for alleging contravention by the appellant. 3. Allegations of Fraudulent Transactions and Issuance of Bogus Invoices: The Revenue alleged that M/s AIPL issued invoices to enable the appellant to avail Cenvat credit fraudulently. However, the Tribunal noted that there was no evidence of the appellant procuring any goods locally to replace the allegedly non-received goods. The Tribunal emphasized that the statutory and private records maintained by the appellant clearly showed the payments towards the goods and their accounting in the records, further usage, and use in production. 4. Non-Granting of Cross-Examination of Transporters: The appellant sought cross-examination of the transporters, which was not granted. The Tribunal held that in the absence of cross-examination, the appellant did not have the opportunity to examine the veracity of the statements of such witnesses. Therefore, the demand could not be sustained based on the statements of the transporters alone. 5. Absence of Evidence for Flow Back of Funds to the Appellant: The Revenue alleged that the payments received by the sellers were returned to the appellant. However, the Tribunal found no evidence of the flow back of funds to the appellant. There was no evidence or statement from any person indicating that any amount was returned to the appellant. 6. Use of Third-Party Records for Alleging Contravention: The Tribunal noted that the Revenue relied heavily on third-party records and statements. However, the Tribunal held that such evidence could not be the sole basis for confirming serious charges against the appellant. The Tribunal referred to several judgments where it was held that the statements of transporters, being merely third-party/co-accused, cannot be solely relied upon to confirm such serious charges. Conclusion: The Tribunal set aside the impugned order, holding that the demands and penalties against the appellant, M/s Gujarat Victory Forgings Pvt Ltd, and the penalty imposed on Shri V.K. Gupta were not sustainable. The appeals were allowed with consequential reliefs. The Tribunal emphasized that the statements of transporters and check-post reports alone could not be the basis for denying Cenvat credit when the appellant had duly accounted for the goods and made payments through banking channels.
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