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TMI Blog2014 (2) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... ly received, the same were removed without payment of duty or reversal of the cenvat credit. Report of the RTO authority established that the numbers of the vehicles through which the goods were said to have been transported were two wheelers and rickshaws in which such heavily weighing goods could not ever have been transported. The assessee did not dispute the RTO report, but only suggested that the numbers of the vehicles in their registers would have been wrongly noted. We are afraid, such a flimsy explanation cannot be accepted. Discrepancies were noted not in one or two vehicles, but in large number of cases. Further, the assessee in order to explain away the short-fall in the physical stock, contended that the goods previously received were sold in the market as the same was found to be inferior and not possible for use in manufacturing activity. Even this was so, the assessee was required to reverse the cenvat credit which the assessee admittedly did not do. The Authority, therefore, rightly invoked the extended period of limitation - Decided against assessee. - Tax Appeal No. 812 of 2013 - - - Dated:- 15-1-2014 - Akil Kureshi And Sonia Gokani,JJ. For the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout transporting the goods in question through vehicles whose registration numbers were recorded by the assessee in their records. The case of the Revenue was that such vehicles were not capable of transporting the articles such as iron ingots and bars. The show cause notice therefore urged that the assessee had wrongly availed the cenvat credit to the tune of Rs.8.99 lacs without actually receiving the goods. It was alternatively suggested that even if for the sake of assumption the goods were received, then also, the same were removed without reversing the cenvat credit availed on them. It was on such basis the show cause notice was issued. The assessee replied to the show cause notice and opposed the proposals contending, inter alia, that the goods were actually received and further that part of the goods were lying in the premises of the sister concern and invoice made of the assessee was a mere mistake. The Adjudicating Authority rejected the defence of the assessee and confirmed the duty demand and interest and imposed penalties making following observations: Discussion and Findings: 11. I have gone through the facts of the case, the written submissions and the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yers angle (in case the goods were received) is not a mature argument, in so far as removal to traders without invoices would become difficult to investigate/trail if the party in question does not cooperate and give out the names of traders to whom the goods have been sold. Revenue cannot be expected to magically identify the names of traders when the person who has entered into dubious transaction fails to remember the names of traders. Non-cooperation of the assessee has been the highlight of the notice. The charge of removal of input as such without reversal of duty and without preparation of invoices has also been accepted. In fact I find that till date the same has not been denied by way of an affidavit. Now questioning the investigation appears to be an after thought. 14. Regarding availment of credit on TMT/CTD bars, it is amply clear from the RTO verification, that the goods have not been received. However, even otherwise it is admitted fact that the same were required for civil work in rolling division and the credit was availed in Furnace division. In fact during the physical stock taking at the Rolling division, the exact quantity of the bars were found in excess. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the department with an intent to evade payment of duty thereby making them liable for penalty under Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. 18. I further find that Shri Viral M. Shah, Director of M/s.Gyscoal Alloys Pvt Ltd was the person concerned, who acquired the possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner dealt with the excisable goods which he knew and had reason to believe that the same are liable for confiscation. These acts, have rendered him liable for penal action under Rule 26 of the Central Excise Rules, 2004. The assessee challenged such order before the Appellate Authority. The Appellate Authority rejected the appeal placing considerable stress on the RTO report produced by the Department showing that the modes of transportation of the inputs as declared in the invoices were dubious. The stand of the assessee that there was a mistake in mentioning the vehicle numbers in the invoices due to plain human error was not accepted. The orders passed by the Appellate Commissioner were challenged before the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for manufacture and the same was therefore sold in the local market. The Adjudicating Authority held that even in such a scenario, the assessee was required to reverse the cenvat credit which it was not done. In addition to the main finding that the assessee evaded payment of duty, the authority also based its order in original on the alternative plank, namely, even if the goods were received, the same were removed, as per the admission of the assessee, without reversal of the cenvat credit. This view was confirmed by the Appellate Authority and the Tribunal. In our opinion, the findings and conclusions of the Revenue Authorities as confirmed by the Tribunal do not give rise to any question of law. The entire issue is based on facts. Two Revenue Authorities and the Tribunal concurrently on the basis of the material on record came to the conclusion that the assessee had indulged into creation of false entries of receipt of goods without physical delivery thereof, we do not find any question of law arises. No perversity is pointed out in such factual findings. On the contrary, we notice that there was considerable evidence on record to come to such a conclusion. As noted, the report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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