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TMI Blog2015 (4) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... . 112 dated 22.08.2000 purchased imported material i.e. Zinc Ingots from M/s R.K. Enterprises (hereinafter to be called as 'dealer') in the month of July-August 2000. The importer at the time of import had paid Additional Custom Duty (CVD) apart from other duties and the appellant could take credit of Additional Custom duty. The respondent-department initiated an investigation against the dealer alleging that only invoices were being supplied to the buyers and not the material. Statement dated 16.1.2001 of Sh. R.K. Gupta, owner of the dealer was recorded inter alia mentioning that he did not have any godown to store the goods, therefore, he used to deliver the goods to his buyers directly from the manufacturers/dealers/importers and that in case of scrap and other such material where the quantity delivered was more than 6 tons against the invoice through tempo, the transaction was bogus. Sh. R.K. Gupta, appellant, stated that M/s Gupta Metal Sheets Private Limited and M/s Parkash Strips Limited never purchased the material from him and he has given only invoices. Copy of the statement by Sh. R.K. Gupta dated 16.1.2001 is attached alongwith the appeal as Annexure A-2. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture of finished goods and had further paid duty on the finished goods and that the production having been duly shown in RG-1 register i.e. Annexure A-6 and paid duty on finished goods, there was no question of payment of duty, if no inputs had been received. Secondly, that the Division Bench of CESTAT had allowed the appeal of M/s Garima Enterprises Private Limited i.e. one of the buyers of M/s R.K. Enterprises and while allowing the appeal it had held that the statement of Sh. R.K. Gupta revealed that besides issuing bogus Modvat Invoices, he was also issuing genuine invoices and statement of Sh. R.K. Gupta was very general and nowhere specifically mentioned that the invoices issued in the name of the appellant were bogus. The CESTAT had further held that M/s Garima Enterprises Private Limited never received invoices for more than 6 tons and as such even as per the statement of Sh. R.K. Gupta, supply to M/s Garima Enterprises Private Limited was not bogus and that the CESTAT had wrongly interpreted the decision of the Division Bench in the case of M/s Garima Enterprises Private Limited. In the case of M/s Garima Enterprises Private Limited it was nowhere held that consignments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law have been framed in the appeal by the appellant:- (a) Whether demand can be created on the basis of statement of third party who has not been allowed for cross examination? (b) Whether the findings of Tribunal are perverse and contrary to the facts and evidences on record? (c) Whether Tribunal is justified to confirm demand when demand against similar situated buyers has been dropped? (d) Whether equal amount of penalty is justified when penalty in other cases has been reduced? On the basis of the proceedings conducted, the Assistant Commissioner , Delhi-III, Gurgaon, passed Order-in-Original dated 29.3.2006 by observing that Noticee No.1 had availed of the inadmissible Cenvat/Modvat Credit of Rs. 3,30,120/- collectively against three invoices i.e. 051 dated 12.7.2000, 052 dated 12.7.2000 and 112 dated 22.8.2000 when the goods actually did not accompany the invoices. Noticee No.1, 2 and 3 could not give any probable reason for delay of 8 days and 1 month from the date of despatch from the supplier and reaching of the goods to the factory of Noticee No.1, if at all agreed to, since the goods were claimed to be directly supplied to the Noticee No.1 without being unloaded eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Rules, 1944 read with Section 11A of the Act ibid. The Commissioner, Central Excise (Appeals), Delhi III, Gurgaon, while hearing the appeal by the appellant against the order of the Assistant Commissioner, set aside the order passed by the Assistant Commissioner by observing that from the statement of Sh. R.K. Gupta, it appeared that he may have indulged in bogus transactions but it was difficult to ascertain as to which of the transactions were genuine and which were bogus and statements of the transporters did not corroborate the statement of Sh. R.K. Gupta in material particulars, with regard to the appellant. Secondly that there were number of statements of the supplier of inputs, who had stated that they physically supplied the inputs to the firms of Sh. R.K. Gupta on payment of duty and said statements were totally at variance with the statement of Sh. R.K. Gupta, who had stated that in the case of bogus transaction, neither the materials were physically received by him nor further sold to its customers. Thirdly, that there was no link or corelation evident from the details of the bank account of M/s Shivalik International and M/s Neelkanth relied upon in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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