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TMI Blog2016 (1) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... ices issued to the appellant by Shri R.K.Gupta were not genuine. Department has not succeeded in establishing guilt on the part of appellants. The statement of Shri R.K.Gupta does not contain incriminating evidence against the appellants so as to deny the credit. - Credit allowed - Decided in favor of assessee. - Appeal No. E/2791/2002-EX(DB) & E/Misc/51903/2015 - Final Order No.53505/2015 - Dated:- 23-11-2015 - Smt. Sulekha Beevi C.S., Member (Judicial) And Mr. B. Ravichandran, Member (Technical) For the Petitioner : Shri N.L.Jangir, Advocate For the Respondent : Shri R.K.Mishra,DR ORDER Per: Sulekha Beevi C.S. The appellant is aggrieved by the disallowance of cenvat credit on the ground that the goods were not actually received by the appellant and that the transactions were bogus. 2. This case was originally disposed by the Tribunal vide Final Order No.A/255/03-NBC dated 29.4.2003. By the said order, the Tribunal then upheld the disallowance of cenvat credit but reduced the penalty imposed. The appellants then filed an application for rectification of mistake before the Tribunal as E/ROM/121/03. The same was decided vide order dated 23.12.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted visit on 7.2.2001, the stock of finished goods and raw material were found correct with the statutory records. If the appellant had not received the goods along with invoices, the stock of finished goods and raw material would not have tallied. Further, there is no case that these invoices were fabricated by the appellant. The appellant had no reason to doubt the invoices issued by M/s. R.K. Enterprises as these invoices were accompanied by goods. Full payments were made by cheque and this is reflected in the bank statement produced by appellant to the department. A photocopy of the purchase ledger would show the details of payments made to the suppliers. On receipt of goods, the appellant entered the same in Form-IV register and its RG-23A Part 1. Copies of these registers were furnished. The utilization of credit was reflected in RG-23A Part-II. The appellant filed copies of said invoices, RG 23A Part I and II along with its RT-12 returns which have been assessed to duty finally and the department cannot allege thereafter that modvat is not admissible. The appellant is filing sales tax returns and the sales tax for the relevant period has been finally assessed after scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.M.I. Electronics (P) Ltd. . Interestingly in the appeal memorandum as well as in the stay application, the appellant has impleaded itself as, S.M.I. Electronics (P) Ltd. The reason may be because, the appellant might have apprehended that the appeal might not get admitted or rather rejected for defects, unless the appellant gets the mistake in Order-in-Appeal rectified which may consume time resulting in delay in filing appeal. However, in the ROM application filed earlier, seeking the rectification of earlier final order of CESTAT, the appellant had put forward the submission to rectify this mistake also. In the appeal filed before the Hon ble High Court, the name of the appellant seems to be correctly shown by appellant as seen from the judgement of the Honble High Court. In view thereof, we hold that the error in the cause title of the appeal will stand corrected as S.M.I. Electrowire (P) Ltd., as seen stated in the show cause notice. 7. Reverting to the facts of the case, the foremost contention put forward by the appellant is that all his documents, registers would go to show that the transactions were genuine and that appellant had actually received the goods. It is se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re bogus. In case of scraps and other such materials where the quantity delivered on an invoice through a tempo is more than 6 ton the transaction were bogus. In short where on a single invoice quantity sold to my buyers is more than 6 tons the such invoices are bogus . 8. Again as answer to Question.No.29, Shri R.K.Gupta has stated, one cheque pertaining to M/s. S.M.I. Electrowire (P) Ltd. was in favour of my firm and was for sale made by my firm where the goods were physically sold. Shri R.K.Gupta has stated that he used to dispatch goods directly to the customers from the sellers godown. He emphasized names of the two buyers to whom goods were never sold, but only modvatable invoices were given. He specifically stated that where the quantity of goods transported through a tempo is more than 6 tons, the transactions were bogus. He also clarified that in cases where the tempo number differs with sales invoices the transactions are not genuine. After taking the statement of Shri R.K.Gupta, department has not conducted any investigations with regard to the tempo number shown, in these invoices. Instead, the department has just shifted the burden on the appellant stating t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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