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TMI Blog2013 (11) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... ice was accordingly issued to the respondent company M/s. Soorajmull Baijnath Ind. Pvt. Ltd., Sh. Jai Prakash Gupta director of the respondent company and also partner of the supplier firm M/s. Jayanti International, and M/s. Jayanti International for recovery of Cenvat Credit or Rs. 72,543/- from the respondent and imposition of penalty on them and their director Sh. Jai Prakash Gupta and also for imposition of penalty on the supplier, M/s. Jayanti International. The Show Cause Notice was adjudicated by Assistant Commissioner vide order-in-original dt. 24.08.05 by which the above mentioned Cenvat Credit demand was confirmed along with interest against the respondent and while penalty of Rs. 72,543/- was imposed on M/s. Jayanti International under Rule 25 read with section 11AC of Central Excise Act, penalty of Rs.10,000/- each was imposed on M/s. Sooraj Mull Baijnath Inds. Pvt. Ltd. (Respondent) and Sh. Jai Prakash Gupta under Rule 26 of Central Excise Rules, 2002. The above order of the Assistant Commissioner was upheld by Commissioner (Appeals) vide order-in-appeal dt. 23.02.06. On appeal being filed to the Tribunal, the Tribunal vide Final Order No. 1671-1673/20080SM (BR.) dt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elying upon the judgment in case of Ranjeev Alloys Ltd.(Supra) has clearly held that once the registration number of the vehicle mentioned in the invoice, in which the goods covered under the invoice are claimed to have been transported, is found to be of two wheeler or three wheeler and not a transport vehicle, the burden shifts to the assessee who had availed Cenvat Credit on the basis of that invoice to prove the receipt of the goods, that in de-novo proceedings, the respondent who had availed Cenvat Credit on the basis of such an invoice containing vehicle number of a two wheeler were required to produce evidence to show that the goods covered under the invoice had actually been received, that no such evidence has been produced, that Commissioner cannot rely upon the newspaper reports regarding larger scale use of fake registration number plates in Punjab, that the Tribunal's judgment case of Ranjeev Alloy Ltd. (Supra) mentioned in the remand order, has been uphold by Hon'ble Punjab & Haryana High Court vide judgment reported in 2009(247) ELT-27 (P&H), that the Commissioner (Appeals) has allowed the appeal of the Respondent without considering the points which were required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transporting the goods mentioned in the invoice, the burden would shift to the assessee, who had taken Cenvat Credit on the basis of such invoice, to prove that the goods covered on the invoice were, indeed, received by him. The appeal filed against this judgment of the Tribunal has been dismissed by Hon'ble Punjab & Haryana High Court vide judgment reported in 2009(247) ELT-27 (P&H). The Tribunal vide order dt. 30.12.08 had remanded this matter to Original Adjudicating Authority for de-novo adjudication in the light of the judgment of the Tribunal in case of Ranjeev Alloy Ltd.(Supra) and in the de-novo proceedings the Original Adjudicating Authority was to decide this matter after considering the evidence produced by the respondent regarding receipt of the goods. While the Original Adjudicating Authority has confirmed the Cenvat Credit demand and imposition of penalty on the respondents, the Commissioner (Appeals) has set aside this order on the grounds which are reproduced below:- I have carefully gone through the facts of the case and the case cited by the appellants and submissions made in writing and at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucks only. 6. The number of such consignments is very insignificant and is less than 0.1% which shows that there was no planned move to evade any tax by way of any fraud. All these facts prove that the inputs were regularly received by the manufacturers and the mention of wrong Registration number on the vehicles was not to evade any duty of excise rather the same was done by the owners or Drivers of the Trucks for the reasons known to them only and the same has been confirmed by the report of the press as mentioned above. The above contention of the appellants are also correct and convincing in as much as the Department has not proved anywhere that the appellant have used the inputs, in question, in their final products by procuring from sources other than mentioned in invoices, because the production and clearance of the final products by the appellant has not been denied or disputed by the Department. Thus the Cenvat Credit has been denied only on the basis of assumption and presumption, which is not legally correct. 6. On perusal of the above grounds for setting aside the Assistant Commissioners Order, it is clear that the Commissioner (Appeals) has taken note of the Newspap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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