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TMI Blog2014 (5) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... ed notes showing that the said material were received by them - there is no evidence on record that the appellant was a party to the non-payment of Central Excise duty by the suppliers. They have followed the procedure correctly and have availed the credit on the basis of invoices issued by the suppliers. The said invoices contain all the particulars required to be mentioned in the invoices and are proper cenvatable invoices - Following decision of Tarsen Polyfab Pvt. Ltd. vs. CCE, NOIDA [2010 (10) TMI 270 - CESTAT, NEW DELHI] - Demand is time barred also - Decided in favour of assessee. - Appeal No. 2949 & 2674 of 2011-EX [SM] - ORDER NO. FO/ 52026-52027/2014- (SM) - Dated:- 8-5-2014 - Ms. Archana Wadhwa, J. For the Appellant : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the original adjudicating authority. On appeal against the same, the Commissioner (Appeals) remanded the matter by observing that Revenue s entire case is based upon two statements of authorised representatives of the suppliers, who have not been offered for cross examination. Accordingly, he remanded the matter to the Assistant Commissioner for fresh adjudication, with directions to offer the deponent of the statement for cross examination. 5. During denovo adjudication, the original adjudicating authority offered only one deponent for cross examination and did not allow the cross examination of second person by observing that they have not spoken anything against the appellant. The demands were again confirmed along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. In any case, and in any view of the matter, I find that apart from the said statement, there is no other evidence on record. Admittedly the appellants have received the capital goods under the cover of invoices issued by the suppliers. The same stand installed in their unit and infact also stand confiscated by the authorities below. The appellants have produced on record the evidence of payment of U P Trade tax as also CST. Further, they have produced material received notes showing that the said material were received by them. 10. I find that an identical dispute involving one of the present supplier i.e. M/s. Hindustan Electronics was the subject matter of Tribunal s decision in the case of Tarsen Polyfab Pvt. Ltd. vs. CCE, NOIDA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate that if the Central Excise duty does not stand paid by the supplier, the Revenue s action should have been directed against the said supplier for the recovery of Central Excise duty. The appellant cannot be directed to reverse the credit especially when there is no dispute about the receipt of capital goods under the cover of Central Excise invoice. 11. Apart from the above, I also find that credit was availed during June, 2004 to October, 2004 whereas the show cause notice stand issued on 12.11.07. Having already held that appellants availed the credit in accordance with the provisions of Cenvat Credit law and not being a party to the fraud if any, committed by the supplier, cannot be attributed with any malafide. In that case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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