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TMI Blog2013 (11) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... this is a case where the Cenvat credit had been taken without actually receiving the goods, as has been clearly stated by Shri Mahesh Kumar Sharma in his statement. If the shortage was due to inability of Shri Mahesh Kumar Sharma to locate the goods, he would not have given such a categorical statement that no goods had been received - This statement of Shri Sharma had not been retracted by him - Just because the suppliers who had issued the invoices have claimed to have supplied the goods and have claimed to have received the payment, it does not nullify the fact that at the time of stock taking on 12/12/07, the goods covered under these invoices were not available and even for more than 2 weeks after the detection of the shortage, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Lumps/Ferro Manganese was supposed to be 113.89 M.T., on physical verification only the stock of 8.88 M.T. of Ferro Silicon Lumps/Ferro Manganese was found and as such there was shortage of 105.01 M.T. of this material. This stock taking had been done in presence of Shri Mahesh Kumar Sharma, Authorised Signatory of the appellant and on inquiry being made with him, he in his statement recorded on that day, while admitting the shortage of 105.01 M.T. of Ferro Silicon Lumps/Ferro Manganese, stated that the said goods are covered by four invoices dated 30th August, 2007, 13th September 2007, 22nd October 2007 and 25th October 2007 issued by M/s Krishna Trading Company, Bhiwadi, M/s Maithan Smelters Ltd., Meghalaya, M/s Shree Salasar Steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the learned Counsel for the appellant, pleaded that though at the time of stock taking, as against the stock of 113.890 M.T. of Ferro Silicon Lumps/Ferro Manganese, only 8.88 M.T. of this material had been found, the appellant subsequently vide their letter dated 28/12/07 addressed to the Department had stated that the missing material was available in the factory and, as such, there was no shortage, that Shri Mahesh Kumar Sharma, Authorised Signatory in whose presence the stock had been checked, was not looking after the procurement and storage of the raw material on regular basis and the person who was doing this on regular basis, was on leave, that as soon as the appellant were able to locate the missing stock, they intimated the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been taken on the basis of invoices issued by four suppliers and in respect of those invoices there was no supply of any goods and it was the appellant s mistake that they have taken this Cenvat credit on the basis of invoices under which no goods had been received, that if the missing Ferro Silicon Lumps/Ferro Manganese was available in the factory, the appellant should not have taken 16 days to locate the same, that in this background, the retraction of statement by Shri Mahesh Kumar Sharma has no meaning, and that this is a clear case of availing Cenvat credit under bogus invoices without actually receiving any material. He also pleaded that Shri Mahesh Kumar Sharma has not retracted his statement. He accordingly pleaded that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters. It is not disputed that at that time, Shri Sharma signed the stock verification report and not only this, he in his statement recorded under Section 14 of Central Excise Act admitted the shortage and also stated that the goods found short are covered by invoices issued by four suppliers and that the Cenvat credit, in question, had been taken on the basis of those invoices of four suppliers but no good had been received under these invoices while Cenvat credit had been taken. He also agreed to pay back the Cenvat credit wrongly taken. On the same day, he paid an amount of Rs. 7,56,470/- by cheque which is the Cenvat credit involved on the goods found short. It is only after gap of about 16 days that a letter was sent by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered under these invoices were not available and even for more than 2 weeks after the detection of the shortage, the appellant were not able to produce the goods supposed to have been received under these invoices. In view of this, I hold that there is no infirmity in the impugned order upholding the Cenvat credit demand of Rs. 7,56,470/- alongwith interest and imposition of penalty of equal amount. 9. As regards the penalty of Rs. 2,00,000/- under Rule 25 (1) (a) read with Rule 25 (1) (d), during the period when this fraudulent Cenvat credit of Rs. 7,56,470/- had been taken to which the appellant were not entitled, the excisable goods had been cleared by payment of duty through Cenvat credit while there was no sufficient Cenvat credi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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