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TMI Blog2015 (4) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... nt out that Shri R.K.Gupta did not possess any manufacturing facility or any godown from where he could supply goods. The appellant has admittedly availed CENVAT credit on goods received from Shri R.K.Gupta. It was held by tribunal that "there is no dispute about the fact that GRs under which the goods had been dispatched by the registered dealer M/s R.K.Enterprises are bogus and had been fabricated by him. In fact, the owner of one of the truck which was used for transportation of the goods covered under invoice No.241 & 258 in her statement has clearly stated that she is not aware of the transportation of any goods of M/s R.K.Enterprises.” I also find that appellant has not challenged this order of the Tribunal. Commissioner (Appeal) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MODVAT/CENVAT credit without supplying goods and by only issuing invoices led to the search of his premises, recording of statements of Sarla Devi mother of R.K.Gupta, Raj Kumar Verma, authorised signatory of the appellant, Arun Kumar partner of M/s Jain Tar Udyog as also recovery of forged documents and seals etc. As the respondent formed a prima-facie opinion that the appellant had contravened Rule 57 AB, 57 AC and 57 AE of the Central Excise Rules, 1944, (hereinafter referred to as the 'Rules'), the appellant was called upon vide notice dated 16.11.2004 to show cause why: - a) The CENVAT credit amounting to ₹ 1,97,263/- wrongly taken and utilised should not be disallowed and be recovered from them under Rule 57AH of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintaining the disallowance of CENVAT credit and imposed penalty. The appellant filed an appeal which was dismissed on 04.02.2011. The appeal filed by the appellant before the CESTAT has been dismissed. Counsel for the appellant submits that the foundation of the case is the statement made by Shri R.K.Gupta who stated that GR books were printed by him and that the transport companies named in the GR books do not exist but did not state that goods were not supplied to the appellant. All that Shri R.K.Gupta stated was that where the quantity delivered was more than six tonnes, the transaction was bogus. The quantity of the goods supplied to the appellant, through invoices were 2705 kg, 2923 kg and 4004 kg i.e. less than six tonnes. This ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P H); 4 . Lakshmi Wire V/s Commissioner of Central Excise, Delhi-IV , 2006 (193) ELT 511 (Tri.-Del.); 5 . Commissioner of Central Excise, Chandigarh-1 V/s M/s Laxmi Engineering Works, GCR-4-2004, decided on 22.03.2010; and 6 . Mahek Glazes Pvt. Ltd. V/s Union of India, 2014 (3000) ELT 25 (Guj.). Counsel for the revenue submits that a perusal of order, dated 08.09.2009, passed by the CESTAT remitting the matter to the adjudicating authority reveals that the CESTAT has recorded a finding that GR receipts are bogus and have been fabricated but after referring to a judgment of the CESTAT in Rajiv Alloys Limited, remitted the matter to the appellate authority to enable the appellant to prove that under the invoices in dispute, goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abricated by him. In fact, the owner of one of the trucks which was used for transportation of the goods covered under invoice no. 241 256 in her statement has clearly stated that she is not aware of the transportation of any goods of M/s R.K.Enterprises. In view of these circumstances, following the judgment of this Tribunal in the case of Rijiv Allows Ltd. (supra), I hold that the burden of proving that under these invoices the goods had actually been received would be on the appellant. Since the ratio of this judgment has not been considered by the lower Appellate Authority and by the Adjudicating Authority, the impugned order is set aside and the matter is remanded to the Assistant Commissioner for denovo adjudication of this matter i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that she is not aware of the transportation of any goods of M/s R.K.Enterprises. I also find that appellant has not challenged this order of the Tribunal. Commissioner (Appeal) has held that burden of proof that goods were received and used for manufacture of final product lies on the appellant and same has not been discharged by them. In view of the fact that the order of the Tribunal was not challenged and also the fact that appellant did not prove receipt and use of the goods in the manufacture of find products, there is no infirmity in the order passed by the Commissioner (Appeal). Accordingly I uphold the order in appeal and reject the appeal of the appellant. The appellant having failed to prove to the satisfaction of the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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