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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 ..... 003. 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 whereby the ROM was rejected. The appellants then approached the Hon'ble High Court of Punjab & Haryana, at Chandigarh and vide judgement dated 23.1.2015 in CEA 128/2006 the High Court set aside the Final Order of the Tribunal dated 29.4.2003 and remanded the matter to this Tribunal for adjudication afresh after examining the statement made by Shri R.K.Gupta, bills, invoices, receipts, cheques and various forms and declarations etc. filed by the appellant before the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These goods were used in production of final products and the same has been entered in RG-1 and reflected in RT-12 returns also. That therefore the allegation that the appellant has not received goods as per invoices is not sustainable. The audit team had visited the appellants unit several times and no discrepancies were found in the stock of raw material/inputs or of finished goods. Again, though the officers 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods. He had obtained Central Excise Registration as a dealer upon fictitiously declaring some premises taken by him on rent. He got printed G.R. books in the name of transport companies which did not exist, and issued such G.Rs to cover bogus transactions. It was also stated by him that payments were received as cheques for the bogus transactions. The method adopted by him was such that Shri R.K. Gupta used to give cheque to cover the purchase made through bogus invoices to his seller, who in turn gave Shri R.K.Gupta equivalent cash. He used to sell such invoices to his customers. The customer used to give him cheque to cover the transaction and Shri R.K. Gupta used to give the cash received from seller to the customer. The cash was thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 seen that the department has mainly relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y material from me they were given only the modvatable invoices without actual delivery of goods. The names of these two buyers are: (i) Gupta Metal Sheets Pvt.Ltd., Rewari (ii) Prakash Strips Ltd., Jagadhari As told by me elsewhere that I did not have any godown to store the goods purchased therefore I used to deliver the goods to my buyers directly from the manufacturers or the warehouse of the dealer/importer in the same tempo in which I used to take delivery. Therefore in all these cases where the tempo Nos. is same in the purchase invoices and sale invoice of the same date. The transaction were genuine and actual delivery of goods did take place. However, in all these cases particularly relating to copper wire rod whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that with regard to the cheque of the appellant the goods were actually supplied. In case of supply of less than 6 tons (i.e. capacity of a tempo vehicle) the transactions are genuine; and that though he had no godown, he used to dispatch goods directly from the sellers godown. In such a scenario, when the documents and registers of the appellant are proper, it is for the department who alleges fraud to establish that the invoices issued to the appellant by Shri R.K.Gupta were not genuine. The department cannot take shelter by merely saying Shri R.K.Gupta was involved in fraud of bogus transactions and thus infer that whoever purchased goods from Shri R.K.Gupta are also part of the fraudulent transactions. On examining the evidence placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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