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TMI Blog2011 (3) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the departmental officers on 17-06-2005 at the factory of the Appellant shortage of final products namely, waste and scrap involving Central Excise duty of Rs.21503/- was noticed. A show cause notice was issued in the matter of duty evasion relating to this shortage of final products noticed. 3. Moreover the officers found that the documents based on which the Appellant had taken credit were not from the suppliers approved by the Indian Railways. Inquiries revealed that these invoices were issued by second stage dealers. The enquiries with the first stage dealer showed that the invoices against which they issued material to the second stage dealers covered material other than what the Appellants were utilizing in their factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not have known that the first stage dealer or the second stage dealer did not have such goods in their stocks. (c) The fact of supply of the final products to Railways is not in dispute. So the goods could not have been manufactured without the required raw material and hence Cenvat credit cannot be denied. (d) The Appellant is in possession of valid invoices issued by the second stage dealer credit cannot be denied to them (e) There was no mis-declaration on the their part and hence the extended period of five years could not have been invoked for making the demand under section 11A of the Central Excise Act. 7. The Ld DR on the other hand argues that invoice for clearance on 30.6.2005 is fabricated after the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoice at the instance of the Appellant. This clearly shows the malafide intention of the Appellant. The fact that finished goods were supplied to Railways also does not prove his bonafides. In the first place the Appellant could have procured sub-standard raw material from non-duty paying sectors and thus cheated the Railways also in the matter of quality. It is also possible that the raw material is shown to be procured without actually procuring any such material and final products were manufactured from raw material from proper sources but excess raw material and credit are shown based on the basis of fraudulent invoices. For deciding the fraud in question the only relevant issue is that the supplier was not having such material on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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