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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 ..... t of the goods purchased against the invoices and shown the same in the RG-1 Register etc - Matter remanded back to CESTAT to consider these aspects - Decided in favour of assessee. - CEA No. 86 of 2010 (O&M) - - - Dated:- 10-2-2015 - Rajive Bhalla And B. S. Walia,JJ. For the Appellant : Sh. Deepak Gupta, Advocate For the Respondent : Sh. Kamal Sehgal, Advocate ORDER B. S. Walia, J. Vide this appeal under Section 35G of the Central Excise Act, 1944 (hereinafter to be referred to as 'the Act'), the appellant prays for quashing of Final Order No. 1471/2009-SM[BR] dated 08.09.2009 i.e. Annexure A-5, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter to be referred to as 'the CESTAT'), allowing the appeal of the respondent by setting aside the order of the Commissioner (Appeals) and restoring the order of the original authority. Brief facts of the case, leading to the filing of the instant appeal are that the appellant is a proprietorship concern working at Faridabad, engaged in the manufacturing of Zinc Oxide. Appellant vide Invoice Nos. 51 and 52 both dated 12.07.2000 and Invoice No. 112 dated 22.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence brought on record by the department regarding fraudulent availment of credit was inconclusive and insufficient to prove the same and that the statement of Sh. R.K. Gupta should have been read as a whole. The revenue preferred an appeal in the year 2007 before the learned CESTAT, assailing the Order-in-Appeal passed by the Commissioner (Appeals), whereupon the CESTAT vide its Final Order Annexure A-5 dated 08.09.2009 allowed the appeal of the revenue by holding that in the present case, admittedly all the consignments were of more than 6 MT, therefore, the Adjudicating Authority had rightly held that the assessee availed credit merely on the basis of invoices. The CESTAT further held that the Division Bench in the case of M/s Garima Enterprises Private Limited had already held that consignments of more than 6 MT were bogus and opportunity of cross examination would not be necessary. Instant appeal has been filed before this Court on the ground that the appellant had made payment of invoice price by cheque and had manufactured finished goods and paid duly thereon, consequently, it was entitled to credit of 16% of value of the material, especially since it had shown manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no evidence that duty paid material had been diverted and used by any third party and there was no advantage to the appellant to simply buy the invoice when it had paid duty on finished goods and payment was made through cheque. The appellant had been supplied material in truck Nos. HR 38B 0244, HR 38B 1101 and HRP 7671. No enquiry had been made from the owners / drivers of the aforementioned trucks and the enquiry made from the truck owners related to other buyers and not the appellant and the material supplied to the appellant was supplied in trucks and not tempo, whereas the statement of Sh. R.K. Gupta relates to tempo and not truck, therefore the statement of the owners and drivers of the truck was not relevant to the appellant. Lastly, the CESTAT had not considered all the questions of penalty, as the Adjudicating Authority had imposed penalty equivalent to amount of duty although penalty was imposed under Rule 173Q read with Section 11AC of the Act. It was contended that in the light of the above, it was evident that the appellant had not committed any fraud, therefore, penalty was not warranted in the facts of the instant case. The following substantial questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Faridabad also revealed that none of the transport used in all the three subject invoices were genuine. Contention of Noticee No.1 was that no discrepancy was found in the records of the Noticee, when the team officers visited their premises and the inputs received were duly recorded, goods were got manufactured out of those inputs and sold after duly accounted in the daily stock account did not in any way prove that the inputs were actually transacted and further that the demand for cross examination of Sh. R.K. Gupta, Noticee No.2, the drivers, Central Excise staff etc. was not acceptable on merits, since the charges leveled were based on the corroborated evidences on record and were proved without any doubt, the Modvat / Cenvat credit amounting to ₹ 3,30,120/- was also availed by Noticee No.1 against fraudulent / bogus invoices and the same was used by Noticee No.1 for payment of duty on their final products. The said final products were, therefore, cleared without payment of duty as the credit used for payment of the duty was in fact not available to Noticee No.1 and the same was availed of fraudulently. Thus penalty was imposable on Noticee No.1 under Rule 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority had in fact disallowed the credit and imposed penalty against the appellant only by drawing inferences and placing reliance on inadmissible and inadequate evidence. Despite the fact that it was settled principle of law that no presumption on the basis of uncorroborated and uncross examined evidence could be drawn in cases of evasion of duty or availment of Modvat/Cenvat credit when the allegation relates to commitment of fraud etc. Although the appellant has raised a number of points but we are of the view that the matter could be disposed of by remitting the case to the CESTAT to consider the plea of the appellant that the appellant had made the payment of invoice price by cheque and thereafter it had manufactured finished goods and paid duty thereof, as evident from production dely shown in RG-1 Register as also the demand of duty on goods by taking into account the evidence if any to be produced by the appellant in respect there to and in case the appellant succeeds in proving that the payment of price of goods received against invoice had been paid by cheque and that there was no link or corelation even from the details of the bank account of M/s ..... 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