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TMI Blog2014 (5) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... ments as detailed in Annexure ‘A’ have not entered the State of Himachal Pradesh through Parwanoo Check Post/Barrier as evident from the correspondences made with the Sales Tax Authorities of Parwanoo. Ground taken up by Commissioner (Appeals) to drop the demands and penalties has no legs to stand as fraud is clearly manifested. - Demand of duty and penalty confirmed - Decided in favour of Revenue. - Appeal No.E/1112,1113,1114/2006-Ex - FINAL ORDER NO.52031-52033/2014 - Dated:- 8-5-2014 - Mr. Manmohan Singh, J. For the Appellant: Shri R.K. Mishra, DR For the Respondent: Ms. Rashi, Advocate JUDGEMENT PER: MANMOHAN SINGH These three appeals have been filed by Department against the Order-in-Appeal No.465-467/CE/GHD/2005 dated 29.12.2005 wherein the Commissioner (Appeals) allowed the appeals of the respondents-assessee and set aside the duty confirmed and penalty imposed upon M/s.Swati Storewell Pvt.Ltd. and others on the basis of merits as well as on limitation. He also set aside penalty imposed on M/s.Karan Co., Parwanoo as they had not committed any fault and had supplied the goods and received payments through cheques. The Commissioner (Appeals) al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) As per sub-section (4) of Section 22 of the Himachal Pradesh General Sales Tax Act, 1968 pertaining to establishment of check posts or barriers, the owner of person incharge of goods, carriage or vessels entering the limits of H.P. State or leaving the H.P. state limits has to give, in triplicate, a declaration containing such particulars as may be prescribed of the goods carried in such vehicle or vessel as the case may be, before the officer in charge of the check post or barriers and produce the copy of such declaration duly verified and returned to him by the said office or before any other officer referred to in sub-section (2) of the aforesaid Section of the aforesaid Act at the time of checking under this Section. Further, Rule 56 of the Himachal Pradesh General Sales Tax Rules. 1970 prescribes details procedure under the provisions of Section 22 of the Himachal Pradesh General Sales Tax Act, 1968. Thus, it is clear that as per Rule 56 of the Himachal Pradesh General Sales Tax Rules, 1970 read with Section 22 of the Himachal Pradesh General Sales Tax Act, 1968, ST-XXVI-A form is required to be generated/submitted at the barriers/check-posts for the goods enterin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said goods would have invariably been got entered at the sales tax barrier in routine manner and suffered the requisite/required entry with Sales Tax Department. Further, if the party would have not supplied fake ST XXVI-A forms whose authenticity has not been accepted by Sales Tax Authorities, the doubt of investigation authority would have not deepened to the extent that they took such transaction to be fictitious and confined to mere paper transaction. Therefore, it becomes apparent that for taking MODVAT (Cenvat) credit on such inputs fraudulently, they have tactfully shown these inputs procured through aforementioned dealer alongwith invoices and have maintained records of production/clearance and even payment to such suppliers of inputs through cheques. vii) The defacement of the documents was done by the Range Officer following the procedure laid down in the then Rules but the fact of arranging invoices and subsequently taking of MODVAT/Cenvat credit on such documents came to the knowledge of the department only when the case of fraudulent availment of MODVAT/Cenvat credit was detected by the DGCEI who issued the Show Cause Notice. Since the party has fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices was available or not. 8. Para 8 of the CESTAT Order in Appeal No. E/1473-74 of 2006-SM has commented about admissibility and validity of evidence gathered by the Revenue. I find that the impugned order of the adjudicating authority is based on record and backed up by sound reasoning. Records on which reliance has been made are state govt. records and thus authentic and fair. Otherwise also in such cases, it would be futile to expect any direct evidence and therefore, it may be legitimate to draw inferences from the attending facts and circumstances. In such a case, the Department would be justified in relying on the records of the Excise and Taxation Department of the State of Himachal Pradesh and the like, and such statutory records cannot be treated to be extraneous to the process of adjudication. The observations of the Commissioner that in terms of Excise law, receipt of goods can be established only from statutory records of the Central Excise Department and further, that in the absence of any provision under Central Excise law requiring production of St XXVI-A forms, receipt of goods cannot be disbelieved and credit cannot be disallowed. In my opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 all dated 31.12.98 1415422 Invoice is not showing any vital information viz. Invoice No., date hence cannot be correlated with ST-XXVI-A Nothing is visible on the invoice and the same could not be corrected. 3. 418176 dt. 23.12.98 P/2905 dt. 30.12.98 75600 947, 948, 949 all dated 31.12.98 141440 3224/31.12.98 Goods removed on 31.12.98. How they reached. Parwanoo on 30.12.98 4. 415881 dt. 21.11.98 415857 dt. 21.11.98 419373 dt. 30.12.98 419259 dt. 30.12.98 P/3020 dt. 8.1.98 P/3021 dt. 8.1.99 P/3023 dt. 8.1.99 P/3024 dt. 8.1.99 90000 90000 79200 79200 11444/9.2.99 1145/9.2.99 1151/9.2.99 1100/30.01.99 889225 889225 889225 8892253353/9.2.99 3354/9.2.99 3356/9.2.99 3357/9.2.99 Goods removed on 9.1.99 and reached on 8.1.99. How goods can reach Parwanoo on 8.1.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f receipt as date mentioned on ST-XXVI-A were not legible. I have also perused that judgement of Hon ble High Court of Himachal Pradesh which has upheld the order of Tribunal confirming the order of Commissioner (Appeals) dropping the demands against Karan Co. and others. The Hon ble High Court had remarked that, in fact, no material was placed before the Tribunal to controvert the findings of the Commissioner of Appeals. With the present, appeals(s) now the department wants to rely on certain material which was never produced before the Assessing Officer or Revenue Authorites upto the level of the Tribunal. At this stage, the department cannot be permitted to place additional evidence on record. Commissioner (Appeals) in his order has held that department has failed to prove goods covered by invoices have not entered Parwanoo. Commissioner (Appeals) has arrived at this decision as verification of sales tax records kept at barrier could not be done as the records showing movements of goods were not available. 11. However in the present case, position is altogether is different. I have analyzed the issue in the present case keeping in mind the findings of Hon ble High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. Once goods are proved not crossed border and then not received in factory, availment of Cenvat credit on such invoices becomes not maintainable and becomes fraudulent in nature. 14. Commissioner (Appeals) has referred to his earlier decision where in similar circumstances, demands were dropped in the case of M/s Hitkari Industries Ltd Parwanoo and others, but facts in the present case are different. Evidence clearly shows no movement of goods on specified dates which was also confirmed by Sales Tax Authorities. 15. I have also perused copies of judgements Hon ble Himachal Pradesh High Court Tribunal (i) Hitkari Co. (Tribunal), (ii) M/s Karan and Co., (iii) M/s Veer Vision Pvt. Ltd and others (iv) M/s Malwa Fastner Pvt. Ltd. (v) M/s Adhunik Packages (P) Ltd. and Commissioner (Appeals) furnished by the respondents. However on perusal of judgements, it is observed that facts in present case are different and these quoted judgements are not binding. Further there is no force in the contention of advocate that there is no challenge to manufacture and subsequent payment. Once movement of inputs is not proved, credit cannot be availed. No benefit can accrue merely because no ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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