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TMI Blog2010 (2) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... legal error by observing that receipt in factory not in dispute even if goods assumed as not dispatched from supplier. Tribunal committed grave error by holding respondent not to be penalized for fault of others. Cenvat/Modvat credit can be claimed based on invoices of inputs actually received in factory premises and not otherwise. Tribunal order set aside. Matter remanded for fresh decision. Rule 57-I of erstwhile Cenavt Excise Rule, 1944. - 13 of 2004 - - - Dated:- 9-2-2010 - Ashutosh Mohunta and Mehinder Singh Sullar, JJ. Shri H.P.S Ghuman, Advocate, for the Appellant. Shri Jagmohan Bansal, Advocate, for the Respondent. [Order per: Mehinder Singh Sullar, J]. - As per brief, but relevant facts, emanating from the record, the Central Excise Officers searched the registered office premises of M/s. Shobhit Impex situated at Gandhi Lodge, College Road as well as at Chak Sidhu Complex, Malout Road, Abohar and M/s. Gandhi Chem-Fert Industries, Old Fazilka Road, Abohar on 23-7-1998 along with other premises as mentioned in the order dated 21-11-2002 (Annexure Al). During the course of checking, it revealed that M/s. Shobhit Impex have imported six consignme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 3-1-1998 of M/s. Samra Transport Traders. Jaspal Sing son of joginder Singh partner of M/s. Samra Transport Traders and partner of M/s Ludhiana Trailer Syndicate admitted before the Superintendent, Central Excise in their statements dated 25- 7-1998 that the aforesaid consignment was not issued by them or any of their staff members but in fact blank copies of CR were given by them to the representative. Jaspal Singh disclosed that as per their day book trailer No. AS-01-4676 mentioned in GR No. 6436 had in fact gone to Jalandhar and fare of Rs. 6630/- mentioned on the GR has also been wrongly mentioned, but in fact GR No. 6428 dated 3-1-1998 was issued by them in respect of aforesaid trailer. Sanjeev Kumar son of Hans Ra Clerk with M/s. Gandhi Chem-Fert Industries admitted in his statement dated 31-7-1998 that he had received blank GR No. 6436 from Trailer Syndicate, Ludhiana and issued the same on behalf of M/s Shobhit Impex. He further admitted that the said trailer never went to Abohar but in fact he had sent the goods directly to M/s. Emkay Industries Ltd. Jalandhar on 3-1-1998. It appeared that the date of Octroi receipts had also been changed from 3-1-1998 to 5-1-1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He also admitted the incorrectness of the invoices for the purpose of taking modvat credit by respondent No. 1-assessee. Des Raj Partner of respondent No. 3-assessee in his statement dated 28-7-1998 admitted that he cannot substantiate the physical arrival of the goods pertaining to invoice No. 16 dated 18-9-1996 and then reversed the amount of Rs.39546.85 in respect of modvat credit so wrongly availed by the assessee. Dinesh Carg Director of respondent No. 2-assessee in his statement dated 14-9-1998 admitted to the correctness of certificates issued by Municipal Council, Sangrur, wherein it has been certified that only two receipts Nos. 182/695 dated 16-6-1997 for 2375 Kg. of copper and 171 /617 dated 27-6-1997 for 2510 Kg. have been issued by council. Dinesh Garg then voluntarily debited an amount of Rs.70, 000/- in their RG23/A Part II vide Entry No. 254 dated 14-9-1998. Thus, there was no evidence to show that these goods have entered in Sangrur through the Octroi Post. 4. Having noted the various deficiencies and after going through the record, it revealed that various firms including the present assessees availed the modvat credits on false invoices and in fact the inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerate, Chandigarh v Shri Nirmal Kumar Aggarwal CEA No. 108 of 2008; judgment dated 16-4-2009 in Commissioner of Central Excise, Jalandhar v. DCM Engineering Products CEA No. 131 of 2008 (O M); Commissioner of C.Ex. Ludhiana v. Malerkotla Steels Alloys Pvt. Ltd. -2009 (244) E.L.T. 48 (P H) and Commissioner of Central Excise . Chandigarh v. Neepaz Steels Ltd. - 2008 (230) E.L.T. 218 (P H). 11. Having regard to the rival contentions of the learned counsel for the parties, we are of the considered view that the impugned order (Annexure A2) cannot legally be sustained and the appeal deserves to be accepted. 12. The crux of the observations made in the aforesaid judgments is that if the finding recorded by the Tribunal is based on evidence and does not suffer from any legal infirmity, this Court cannot appreciate the same set of facts and evidence available on record. 13. Possibly, no one can dispute about the aforesaid observations, but the same would not come to the rescue of the assessees, because in the instant case, the findings of the Tribunal are perverse, speculative and without any basis or evidence. 14. It is not a matter of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed signatory of M/s. Shobhit Impex, and Managing Partner of M/s. Gandhi Chem-Fertilizer Industries, Abohar in his statement dated 23- 7-1998 had admitted that his daughter Miss Pooja Gandhi is the sole proprietor of the firm M Shobhit Impex and that since she is a dent, so he is looking after the business activity and accounts himself on behalf of M/s. Shobhit Impex etc. 15. Taking into consideration the admission of the parties and other evidence on record, the Commissioner, inter alia, held as under, with regard to the cases of the present assesses:- (I) "M/s. Krishna Wire Products, Goniana, Bathinda have availed mod- vat credit to the tune of Rs.3,15,175.62 on 4 (four) invoices issued by M/s. Shobhit Impex, Abohar. However, as discussed in the previous paras, the goods of the aforesaid invoices have been directly received by M/s. Krishna Wire Products as Sh. Rujinder Mohan s/o Sh. Banarsi Dass, Managing Director of M/s. Krishna Wire Products in his statement dated 29-7-1998 has admitted that the goods were actually despatched from Ludhiana, but the invoices were sent from Abohar subsequently by M/s. Shobhit Impex, Abohar. As such, the goods received were not co-relatable w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e No. 10548 to 10550 dated 30-6-97 goods of invoice No. 35 dated 1-5-97 33 dated 31-7-97 have not been received by M/s. Pee Dee Wire Pvt. Ltd. Sangrur as the same were sent to M/s. Emkay Industries Ltd. A-23 Focal Point Extn. Jalandhar. Sh. Ashwani Kumar, s/o Sh. late Chman Lal of M/s. Golden Transport Co., New Delhi, has admitted in his statement dt. 31-7-98 that he had arranged transportation for the consignment pertaining to Bill of Entry No. 106822 in trailer No. HR 38A-4514 of M/s. Satpal Road Lines, ICD, Tuglakabad, Sh. Ashwani Kumar has further admitted that this consignment was sent to Jalandhar on the instructions of M/s. Shobhit Impex, Abohar, for delivery of the goods of M/s. EmkayIndustries Ltd. A-23 Focal Point, Extn. Jalandhar. Sh. Satpal Kawatra s/o Sh. late S.S Kawatra of M/s. Satpal Road Lines. New Delhi in his statement dated 31-7-98 has admitted that he had given on vehicle HR 38A-4514 to Sh. Ashwani Kumar. Owner of M/s. Golden Transport company on 11-7-97 for carrying loose cargo to Jalandhar. Sh. Satpal Kawatra further stated that Sh. Jagpal working as driver with him for last 8-9 years also remembers having delivered the goods at M/s. Emkay Industries Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvat credit, but it fell in legal error and observed that even if it is assumed that the goods had not been dispatched from Abohar, yet their receipts in the factories of the assessees and the other particulars relating to the quantum of duty, are not in dispute. 17. The contention of learned counsel for the revenue that this finding of the Tribunal is without any basis, has considerable force. The tribunal has also observed that if according to the department, Shobhit had committed certain irregularities at the lime of issue of invoices, there cannot be a case to penalize the assessees for some one else doing. Here, to us, the Tribunal has fell in grave error and did not deal with the reasons recorded by the Commissioner, in this relevant connection and the impugned order cannot legally be sustained. 18. Again, it is not a matter of dispute that the party can only claim the modvat credit on the basis of the invoices of the input duty paid goods, which had actually reached the premises of the assessees and not otherwise. Thus, the findings of the Tribunal are not only devoid of merit and misdirected but perverse and speculative as well. As indicated earli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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