9911796707
TMI Blog2010 (5) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the respondents M/s. Nuline Polymers Pvt. Ltd. amounting to Rs. 85,84,952/- under Section 11A of the Central Excise Act has been dropped. The proceedings were sought to be initiated against the respondents by issuing show cause notice dated 9th July, 2003. 3. The respondents are engaged in the manufacture of PVC and HDPE Pipes etc. classifiable under Chapter 39 of the First Schedule to the Central Excise Tariff Act, 1985. They are registered with the Central Excise department having registration No. 5/CH-39/P-1/98-99. 4. It is the case of the appellant that pursuant to the intelligence report that the respondent and other companies were availing Modvat credit facility by obtaining or arranging Modvatable invoices wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parwanoo and those records were transcribed in the register maintained by the statutory authorities under Sales Tax Act which was called ST XXVI-B register. The investigation disclosed and established that no vehicle had ever crossed the entry point in Parwanoo carrying any goods accompanied by the invoices in question as no information in that regard in form ST XXVI-A was ever furnished at the entry point at Parwanoo nor any record in this regard was found in ST XXVI-B register. Besides, this fact was also confirmed by E.T.O. at Parwanoo. Drawing out attention to a letter dated 18th May, 2005 addressed by Sr. Intelligence Officer to the Excise Taxation Officer, Sales Tax barrier, Parwanoo and the reply thereto dated 19-5-2005 the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference to the statutory records. The respondents failed to discharge this obligation. Taking into consideration all these aspects, according to the D.R., the department have clearly established the case of fake invoices and hence, the authorities below should not have dismissed the case. 6. Perusal of the impugned order and other materials on record, indeed, disclose that ETO, Sales Tax department, Parwanoo have clearly confirmed that no vehicle of the description disclosed in the invoices and or in so called ST XXVI-A form allegedly furnished by the dealers ever crossed the barrier on the dates specified in those documents. It cannot be disputed that once the statutory provision requires the dealer to furnish the information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue department. Undisputedly, the respondents had stated that there were 32 ST XXVI-A forms with specific numbers submitted by the dealer at the barrier point, Parwanoo and each form related to specific number of invoice with corresponding number of vehicle by which the goods were allegedly transported. When this information was compared with the register available at the barrier point it was not only revealed that at no point of time any such vehicle had crossed the barrier on the relevant dates but even the number of ST XXVI-A form did not tally with the forms which were made available to the dealer for the entire year of 1998-98 except in case of 6 Forms. This further disclose conduct of the respondents in furnishing incorrect inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing so, that will not result in onus being discharged regarding actual receipt of goods by the assessee accompanied by the invoices. There is allegation of fake invoices and attempt to avail credit on the basis of such fake invoices. In this regard the manufacturer could have obtained the summon to the dealer to produce the necessary evidence. The burden in that regard was squarely upon the manufacturer. For the reasons stated above, we find that the impugned order cannot be sustained and is liable to set aside and demand made under the show cause notice dated 9th July, 2003 needs to be confirmed with all consequential relief. Accordingly, the appeal succeeds and the impugned order is set aside. The demand as made under the said show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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