2015 (7) TMI 497 - AT - Central Excise

Denial of CENVAT Credit - Bogus invoices - third party evidence by way of documents/laptop printout seized recovered - Imposition of penalty - Held that - Third party evidence by way of documents/laptop printout seized recovered from the custody of ShriKirti Kala are not admissible piece of evidence to deny the credit. Further, I find that the statements of Shri Kirti Kala, Paras Patidar and Shri Mukesh Sangla were also relied upon but these statements have not been corroborated by any tangible evidence. I further find that during the course of investigation various statutory records resumed by the investigating team and the same have not been discarded by the authorities. Therefore, the said records are admissible evidence as per section 36A of the Central Excise Act, 1944 wherein it has been stated that any documents produced by any person or has been seized from the control of the said person under this Act or any other law. Unless contrary is proved by such person, it is presumed that the content of the said documents true. In this case, the Revenue has not been able to prove any contrary to the seized documents recovered from the custody of the respondent. Therefore, the same are admissible evidence in favour of the respondent as held by this Tribunal in the case of Rhino Rubber (1994 (4) TMI 196 - CEGAT, MADRAS). In fact no statement of the driver have been recorded to ascertain the truth whether the vehicle in question were involved in transporting the goods or not and no other evidence has been placed on record to ascertain the same. The Revenue has also not come with tangible evidence that the respondent have procured the goods in question from M/s.SOL and other associates. Further, the same investigation conducted in the case of M/s.Narmada Extrusion Ltd. wherein the same set of evidences has been relied on and the Commissioner (Appeals) have set aside the demand of duty and imposition of penalty holding that there are no sufficient ground to confirm the demand .and the said order has been accepted by the Revenue. No appeal has been filed against the said order. On examination of that statement, although the statement retracted by Shri Karni Singh Kothri, this statement is required to be examined independently. On independent examination of the said statement, I find that the goods/inputs were not available in the Indore and the respondent have procured the inputs from the open market in Delhi without cover of invoices. No prudent manufacturer shall procure inputs from Delhi without cover of invoice to cover those purchases shall procure the invoices from Indore. Possibly, the Revenue has not made any enquiry from Delhi Market in respect of statement of Shri Karni Singh Kothari to ascertain the truth. Moreover, no statement has been recorded from the transporter in order to ascertain that the goods have been procured without cover of invoice from the Delhi market. - infirmity in the impugned orders, the same are upheld - Decided partly in favour of Revenue.

Issues Involved:
1. Allegation of availing Cenvat credit without actual receipt of goods.
2. Admissibility and reliability of third-party evidence.
3. Corroboration of statements and documentary evidence.
4. Validity of retracted statements.
5. Investigation adequacy and procedural correctness.

Detailed Analysis:

1. Allegation of Availing Cenvat Credit Without Actual Receipt of Goods:
The Revenue's primary allegation was that the respondents availed Cenvat credit on the strength of invoices issued by M/s. Signet Overseas Ltd. (SOL) and its associates without actually receiving the goods. The investigation revealed that transactions were recorded in the statutory books, but physical receipt of goods was not corroborated. Evidence included handwritten slips, laptop data, and statements from various individuals associated with M/s. SOL, indicating cash transactions and bogus invoices.

2. Admissibility and Reliability of Third-Party Evidence:
The Tribunal scrutinized the evidence obtained from third-party sources, particularly documents and laptop data seized from Shri Kirti Kala, an employee of M/s. SOL. The Tribunal emphasized that these records were personal and not maintained in the regular course of business, thus constituting third-party evidence. Citing the Supreme Court's decision in CBI vs. V.C. Shukla, the Tribunal held that third-party records without independent corroboration cannot be relied upon to establish liability.

3. Corroboration of Statements and Documentary Evidence:
The Tribunal noted that the statements of Shri Kirti Kala, Shri Mukesh Sangla, and Shri Paras Patidar were not corroborated by tangible evidence. The statutory records seized from the respondents' premises were found to be in order and were not contradicted by any other evidence. The Tribunal emphasized that mere statements without corroborative evidence are insufficient to prove the allegations.

4. Validity of Retracted Statements:
The Tribunal considered the retraction of statements by key individuals, including Shri Karni Singh Kothari, Director of M/s. Prag Pentachem Pvt. Ltd. The Tribunal held that retracted statements need to be examined independently and cannot be solely relied upon without supporting evidence. The Tribunal referred to the decision in Vikram Cement Pvt. Ltd., stressing that retracted statements must be corroborated by other evidence to be considered valid.

5. Investigation Adequacy and Procedural Correctness:
The Tribunal criticized the investigation for relying heavily on third-party documents and statements without conducting a thorough and independent verification. The Tribunal highlighted the lack of concrete evidence linking the respondents to the alleged fraudulent transactions. The Tribunal also noted that similar investigations in other cases, such as M/s. Narmada Extrusion Ltd., had resulted in the dismissal of charges, further questioning the adequacy of the investigation in the present case.

Conclusion:
The Tribunal upheld the orders of the Commissioner (Appeals), concluding that the Revenue failed to provide sufficient evidence to prove that the respondents had availed Cenvat credit without actual receipt of goods. The Tribunal dismissed the appeals filed by the Revenue, affirming that the respondents correctly availed the credit and were not liable for reversal or penalties. The judgment emphasized the importance of corroborative evidence and procedural correctness in establishing allegations of tax evasion.

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