2016 (3) TMI 665 - AT - Central Excise

Recovery of Cenvat credit - whether the dealers supplied goods to various persons who did not need Cenvatable invoices and supplied only Cenvatable invoices to M/s KE-I & II without supplying any goods? - Held that - It is a fact that M/s KE-I & KE-II never admitted that they only received invoices without the goods. Not only that, they produced proper records maintained in this regard which showed receipt of the raw material for which payments were duly made and also produced transport documents. It is not in doubt that as statements of the transporters and others were relied upon against M/s KE-I & M/s KE-II, not permitting their cross-examination did cause prejudice to them. In such a situation, such statements of third parties/co-accused whose statements were used to the prejudice of M/s KE-I & M/s KE-II have to be ignored for the purpose of deciding the mater with regard to M/s KE-I & M/s KE-II because their cross examination was not permitted. If the said statements are ignored there remains hardly any evidence against M/s KE-I & II for sustaining the allegation against them. It has also been held by several judgements that 3rd party evidence cannot be made the sole basis of sustaining the demand. When the allegations against M/s KE-I & M/s KE-II are not found sustainable, the question of penalty even on co-noticees would not arise. - Decided in favour of assessee

Summary

Issues:
1. Admissibility of Cenvat credit based on invoices without actual receipt of goods.
2. Validity of primary adjudicating authority's order imposing recovery of Cenvat credit, penalties, and interest.
3. Commissioner (Appeals) decision based on lack of direct evidence against the party.

Issue 1: The case involved the admissibility of Cenvat credit by M/s Kisan Extrusion Ltd., based on invoices without actual receipt of goods. The primary adjudicating authority ordered recovery of Cenvat credit, penalties, and interest from the company. However, the Commissioner (Appeals) held that there was no direct evidence against the company regarding the non-receipt of goods and that the case relied on third-party evidence, making the primary adjudication order unsustainable.

Issue 2: During the appeal, the Revenue argued that the evidence collected during the investigation, including statements and documents, showed that goods were only shown on paper without actual supply to M/s Kisan Extrusion Ltd. The Revenue contended that the Commissioner (Appeals) erred in dropping the proceedings. On the other hand, the respondent's advocate argued that the company consistently maintained that goods were received under the questioned invoices, supported by relevant transport documents, and that the demand was time-barred. The company also requested cross-examination of witnesses, which was denied.

Issue 3: The appellate tribunal analyzed the contentions of both parties and reviewed the records. It noted that M/s Kisan Extrusion Ltd. never admitted to receiving only invoices without goods. The tribunal cited a Supreme Court case emphasizing the importance of fair procedures and the impact of denying cross-examination on the affected party. The tribunal concluded that not allowing cross-examination of witnesses whose statements were used against M/s Kisan Extrusion Ltd. caused prejudice to the company. As a result, the tribunal disregarded the statements of third parties and co-accused, as their cross-examination was not permitted. The tribunal also referenced previous judgments highlighting that third-party evidence alone cannot sustain a demand. Ultimately, the tribunal found no infirmity in the Commissioner (Appeals) decision and dismissed the Revenue's appeals, as the allegations against M/s Kisan Extrusion Ltd. were not found sustainable, leading to the rejection of penalties on co-noticees.