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TMI Blog2015 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... , not correct, as when the burden of proving that the material covered under the invoices issued by the respondent firm had actually been received by M/s Kisco Casting is on them, it is M/s Kisco Casting who has to lead the evidence of having actually received the goods covered under the invoices issued by the respondent firm, and they cannot do so by picking the holes in the Department's case or shifting the burden of proof to the Department. The burden of proof will shift to the Department only when M/s Kisco Casting have produced credible evidence in support of their claim of receipt of the goods covered under the invoices issued by the Respondent. - impugned order is not sustainable - Matter remanded back - Decided in favour of Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey claim and have sold the same to M/s Kisco casting under their invoices. M/s Kisco Casting on the basis of invoices issued by the respondent, took cenvat credit of Rs . 4,15,844/-. The Department conducted inquiries in respect of the transactions between the respondent and M/s Adhunik Alloys Ltd., in course of which the registration number of vehicles, which were mentioned in the invoices issued by the Respondent were got verified through RTO . On verification it was found that in all these invoices issued by the respondent firm, the vehicles No.s were of two wheelers, three wheelers, tankers etc., in which the goods claimed to have been supplied by the respondent firm to M/s Kisco Casting could have not have been transported. It is on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in terms of the judgement of the Tribunal in the case of Ranjeev Alloys Ltd. Vs CCE Chandigarh reported in 2009 (236) ELT -123 which has been upheld by Hon'ble Punjab Haryana High Court vide judgement reported in 2009 (247) ELT 25 ( P .H ), the burden of proving that M/s Kisco Casting had received material covered under invoices issued by M/s B D Gupta and Sons would be on M/s Kisco Casting, that since Kisco Casting have not produced any evidence in support of their claim of having received the material, the transactions between them and the respondent firm have to be treated as bogus transactions, and that in view of this, penalty has been correctly imposed. He pleaded that the Commissioner (Appeals) in the impugned order has relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h . According to the respondent firm, they had sold 16 consignments of scrap to M/s Kisco Casting during the above period from 1996-1997 to July 2001 on the basis of which M/s Kisco Casting took cenvat credit of Rs . 4,15,844/-. However, on inquiry, the vehicle numbers mentioned in the invoices issued by the respondent firm were found to be of non-transported vehicles in which the goods covered under the invoices could not have been transported. Since, this fact is not disputed, in our view, the judgment of the Tribunal in the case of Ranjeev Alloys Ltd. Vs CCE Chandigarh( supra) which has been upheld by Hon'ble Punjab Haryana High Court would become applicable, and accordingly, the burden of proving that the consignments of scrap sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent's case or shifting the burden of proof to the Department. The burden of proof will shift to the Department only when M/s Kisco Casting have produced credible evidence in support of their claim of receipt of the goods covered under the invoices issued by the Respondent. In view of this the impugned order is not sustainable. The same is set aside and the matter is remanded to the Original Adjudicating Authority for de novo adjudication. Thus, the appeal filed by the Revenue in respect of which M/S BD Gupta Sons as the respondent, allowed by remand. 6. As regards the appeal filed by the Revenue where Rajesh Kumar Gupta Sons, Respondent, where penalty had been imposed on the respondent firm, there is no justification for impositi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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