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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 ..... ch is totally incorrect - the invoices on the basis of which the Cenvat Credit used to be taken, were not required to be enclosed with the ER-1 Return - the burden is on the assessee to prove that they had received the goods covered under the invoices on the basis of which Cenvat Credit had been taken, it is the assessee who have to produce evidence in this regard and for this purpose they cannot ask the Department to produce evidence regarding alternative raw-material used by the respondent for manufacture of final products – order set aside – Decided in favour of Revenue. - Appeal No. E/376 & 408/2011-EX[SM] - FINAL ORDER NO: 57980-57981/2013 - Dated:- 7-10-2013 - Shri Rakesh Kumar, J For the Appellant : Sh. Bipin Garg, Advocate For the Respondent : Sh P.K. Mishra, Jt. CDR JUDGEMENT Per Rakesh Kumar:- The respondent are manufacturer of MS Ingots from MS scrap in their factory at Sonepat. Sh. Jai Prakash Gupta is a director of the respondent company and is also a partner of M/s. Jayanti International. On the basis of invoice dt.30.04.02, issued by M/s.Jayanti International to the respondent regarding scrap, the respondent took Cenvat Credit of Rs. 72,543/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aijnath P. Ltd. along with interest and imposed penalty of Rs. 10,000/- each on respondent Sh. Soorajmul Baijnath and their director Sh.Jai Parkash Gupta. On appeal being filed to Commissioner(Appeals) against this order the Commissioner (Appeals) vide order-in-appeal dt. 23.11.10 set aside the Assistant Commissioners Order on the grounds that:- (a) M/s. Sooraj Mull Baijnath Inds. Pvt. Ltd. have submitted that during the period of dispute it was common practice in Punjab for trucks to ply with fake number plates as reported in the Tribune of 31.03.04 wherein it was reported that 500 vehicles were running in the Punjab state on fake registration and similar report published in Times of India on 13.08.02; (b) In view of the above newspaper reports non-mentioning or wrong mentioning of vehicle number in the invoices does not bar any assessee to avail Cenvat Credit and such mistake in mentioning the vehicle nos. can be attributed to some clerical lapse; (c) The vehicle in question had been weighed on Dharamkanta which had issued the weighment slips which contain the Registration Number of the vehicles, which shows that the transport vehicle was the truck only; and (d) The D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles were weighed which proves that the vehicle was not a two or three wheeler, that Hon ble Punjab Haryana High Court in case of CCE, Chandigarh Vs. Shakti Roll Cold Strips Pvt. Ltd., reported in 2008 (229) ELT-661(P H) has upheld the Tribunals Order rejecting the Departments appeal against the order passed by the Commissioner (Appeals) holding that merely on the basis that the vehicles registration no. mentioned in the invoices were of non-transport vehicles, the invoices cannot be treated as bogus invoices and Cenvat Credit on the basis of those invoices cannot be denied, that same view was taken by Hon ble Punjab Haryana High Court in case of CCE, Chandigarh Vs. Nirmal Kumar Aggarwal reported in 2008(230) ELT-47 (P H) and civil appeal filed by the Government against this judgment was dismissed by the Apex Court vide judgment reported in 2011(270) ELT-A91 (SC) and that in view of this, there is no merit in the Revenue s appeal. 5. I have considered the submissions from both the sides and perused the records. In this case there is no dispute that the invoice on the basis on which the Cenvat Credit has been taken, mentioned the registration number of vehicle, which was found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating the two were held for Driving with fake numbers. The above contention of the appellant is quite correct and convincing as has also been confirmed by the News of the various newspapers mentioned above that a number of Trucks were playing in the market with fake registration nos. and as such the contention of the adjudicating authority totally fail on this account only. I am also of the opinion that non-mentioning or wrong mentioning of vehicle number issued for the transportation of the goods does not bar any assessee to avail Cenvat Credit or any other benefit under Central Excise Act. Such mistakes in mentioning the vehicles nos. can be attributed to some clerical lapse also. The further contention of the appellant are that the Department has not disputed the following facts:- 1. Payment for the purchase of the inputs have been made through Cheque Demand Draft. 2. The inputs in question have been used in the manufacture of final products, which have been cleared on payment of duty. 3. The Department has not been able to prove that any other alternative raw material was received and used in the final products. 4. The ER-1 Return have been assessed finally by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of creditable evidence in support of receipt of goods by the Respondent would shift the burden of proof to the Department. The Commissioner (Appeals), however, travelling beyond the scope of the remand has accepted newspaper reports as evidence produced by the Respondent which is totally incorrect. The newspaper reports regarding use of fake number plates by Trucks in Punjab, cannot be treated as evidence of receipt of goods by the respondent. Moreover during period of dispute the invoices on the basis of which the Cenvat Credit used to be taken, were not required to be enclosed with the ER-1 Return and hence the finding of CCE (Appeals) that ER-1 Returns had been assessed finally by the Range Officer which were containing all the documents on the basis on which the Cenvat Credit had been availed is a factually incorrect finding. His findings that the vehicle, in question, was weighed at Dharamkanta which had issued a slip mentioning the vehicle no. is not supported by any evidence on record, as no such evidence has been discussed in the order-in-original. Since the burden is on the respondent to prove that they had received the goods covered under the invoices on the basis of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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