2011 (7) TMI 626

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..... ctual receipt the goods that the goods have been transported out of State - in favour of assessee.
Mr.Ashok Jindal, J. Present for the Appellant : Shri K.K.Sharma, Advocate Present for the Respondent : Ms.R.k.Jagdev, SDR PER: ASHOK JINDAL The appellants are in appeal against the impugned order for demanding of duty alongwith interest and equivalent amount of penalty on the allegation that the appellants have wrongly taken the cevnat credit on the invoices without receiving inputs physically in the factory. 2. The brief facts of the case are that on gathering information, the factory premises of the appellants was visited and found that the appellants have taken cenvat credit input credit on the invoices raised by M/s.Kashish Prod .....

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..... een raised against the appellants only on the basis of statement of inputs supplier. Although inputs supplier was not made the party to the show cause notice. Therefore, the demand is not sustainable as the department has failed to prove the charge of non receipt of the goods against the duty paid invoices. To support his contention, he relied on the decision of the Tribunal in the case of CCE, Mumbai vs.Prakash Industrial Corporation reported in 2009 (248) ELT 536, in the case of Motherson Sumi Electric Wires vs. CCE, Noida reported in 2009 (246) ELT 651 and CCE, Chandigarh vs. Shakti Roll Cold Strips Pvt.Ltd. reported in 2008 (229) ELT 661 (P & H). He further submitted that the statement of the supplier is not relevant to the impugned per .....

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..... search. Therefore, the statement of inputs supplier is not for the period from October, 2003 to August, 2004. Further, in the case of Prakash industrial Corporation (supra), this Tribunal has observed that the department did not bother to investigate whether the actual vehicle numbers used in transportation of goods to the place of the assessee, therefore, no evidence has been brought on record. In the case of Motherson Sumi Electric Wires (supra), again this Tribunal has observed that there is no evidence in the form of statement of transporters to support the case of the Department regarding non-receipt of inputs by the appellants. In this case also, the department has failed to produce any statement of the transporter or the actual rece .....

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