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TMI Blog2015 (2) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... Ground, NIT Faridabad, recovered from his office were printed by him as these companies do not exist. Admittedly, the respondents received goods which were less than six metric tonnes. A perusal of the provisions of the statue reveals that initial onus to establish culpability or violation vis-a-vis provisions of the Act lies upon the department but once the department prima-facie proves the culpability of a dealer, the onus to prove that the transaction is legal and valid shifts to the dealer. A perusal of the original statement made by Shri R.K.Gupta as detailed in the order in original, reveals that the respondents were not named as beneficiaries of fraudulent MODVAT/CENVAT credit. A perusal of the record reveals that the respondent has failed to prove any consumption of raw material much less its receipt and as the transport companies have been found to be fake, the judgment in Garima Enterprises's case (2004 (8) TMI 291 - CESTAT, NEW DELHI) cannot be relied as a precedent . The CESTAT, however, failed to consider these significant facts and by placing implicit reliance upon the judgment in Garima Enterprises's case (2004 (8) TMI 291 - CESTAT, NEW DELHI), wrongly allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto possession were accepted by Mr.R.K.Gupta to be false. The GR books of M/s Paradise Tempo Transport Service, Bata Chowk, Faridabad and Golden Transport Company, Nehru Ground, NIT Faridabad, were accepted as forged as it was admitted that these transport companies do not exist. The rubber stamps pertaining to the department, invoice books, GR books etc. were also recovered. Shri R.K.Gupta also admitted that he had not supplied any goods beyond 6 metric tonnes. A show cause notice was, therefore, issued to the respondent and after considering the entire matter, credit of ₹ 2,43,024/- of an equal amount etc. was imposed. The CESTAT has wrongly placed reliance upon the statement made by Shri R.K.Gupta that consignments of less than 6 metric tonnes are genuine and placed reliance upon a judgment of the CESTAT passed in Garima Enterprises (P) Ltd. Vs. Commissioner of Central Excise, Delhi-IV , 2005 (182) ELT 106 (Tri.-Del.) while accepting the appeal. The statement has to be read in its entirety and alongwith material recovered from the office of Shri R.K.Gupta and failure of the respondents to prove receipt and consumption of the goods allegedly received from Shri R.K.Gupta. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to recovery of voluminous incriminating evidence in the shape of slips, fake GR books, numbering machines, blank cheques, stamps of various officers of the department and it also transpired that the alleged office in Faridabad was a single room rented out by Shri R.K.Gupta without any godown from where he could have transferred these goods. Shri R.K.Gupta made a statement on 16.01.2001 under Section 14 of the Central Excise Act, 1944 (hereinafter referred to as the 'Act') stating that parties from whom he procured goods are located in Delhi, Hisar, Gurgaon, Mathura, Baddi and Faridabad. The GR books of M/s Paradise Tempo Transport Service, Bata Chowk, Faridabad and Golden Transport Company, Nehru Ground, NIT Faridabad, recovered from his office were printed by him as these companies do not exist. He also admitted that he issued MODVAT/CENVAT credit invoices without actual delivery of goods and to authenticate the transaction he had prepared fraudulent GR books. He admitted that he did not have any godown to store the goods but stated that he delivered the goods to his buyers directly from manufacturers warehouses and further stated that where the tempo number was the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Books were used in selling as well as purchasing in bogus transactions as was evident from the blank G.R.Books of the non-existent transport companies namely M/s North India Transport Co. Bata Chowk, Faridabad and M/s Golden Transport, Nehru Grount, NIT, Faridabad. 10. The appellant has not produced any evidence before me regarding the actual receipt of inputs by them contrary to the allegations held against them by original authority. The facts and circumstances in cited cases is different that of present case. The impugned order disallowing the modvat/cenvat credit has, therefore, been correctly passed. 11. The evidence brought on record by the department regarding the fraudulent availment of Cenvat credit, in my view is sufficient to prove the same. I find that the Adjudicating Authority has correctly disallowed the credit and imposed penalty against the appellant on admissible and adequate evidence, as discussed above. 12. I find from the statement of Sh.Deepak Kuma Jain that he was looking after the day to day work of the Appellant Company; therefore he was responsible for taking the modvat credit without physical receipt of the goods. Therefore, the adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tempo Transport Service and Golden Transport Company. The order in original clearly records that Shri R.K.Gupta has stated that Paradise Tempo Transport Services and Golden Transport Company are non-existent. The statement made by the respondents is that the goods received were transported by these transport companies. The respondents were, therefore, required to prove the existence of these companies. The respondents have not offered any explanation as to how goods received by them could be transported by non-existent companies and, therefore, cannot hide behind the onus placed on the department. The CESTAT placed implicit reliance on the statement made by Shri R.K.Gupta that transactions below six metric tonnes are genuine and relied upon the judgment in Garima Enterprises's case (supra). The CESTAT lost sight of the fact that in Garima Enterprises's case (supra), the revenue could not controvert evidence adduced by the dealer that he had used the goods received from Shri R.K.Gupta, for job work and conversion and had paid conversion charges on job work thereby establishing that the goods had been received, processed and consumed by the dealer. A perusal of the record r ..... 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