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TMI Blog2015 (3) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... Jagruti Resin Pvt. Ltd. and certain statements were recorded. Statements of some of the transporters were also recorded and it was concluded that as the transport vehicle are not having the capacity to transport the goods in question, therefore, the manufacturer buyer have not physically received the goods and there is only paper transaction. Consequently, Cenvat credit cannot be availed by manufacturer buyers. Therefore, the same was sought to be denied. Consequently, various show cause notices were issued and it was adjudicated and concluded that the manufacturer buyers have not received the goods physically and there were only paper transactions. Consequently, manufacturer buyers are not entitled to take Cenvat credit on the invoices issued by M/s. Jagruti Resin Pvt. Ltd. and M/s. Shree Sai International. Therefore, demand on duty was confirmed against the manufacturer buyer along with interest and penalties on manufacturer buyer, their employees, M/s. Jagruti Resin Pvt. Ltd. and M/s. Shree Sai International and their employees were imposed. Against those orders, the appellants are before me by way of these appeals. Revenue is also in appeals from dropping the demand and against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they are not issuing LR/GR for transportation of the goods as the goods are being transported locally by the vehicle. The statement was initially recorded, the owner of the vehicle stated they are not maintaining any record. After recording the statement initially, on 10-6-2009 it was stated by the transporter that driver was maintaining a diary to transport the goods date wise and also recording the name of the persons whose goods are being transported and to whom goods are being delivered on the basis of this diary maintained by the driver, it reveals that goods were never transported by the vehicle. Therefore, it is alleged that the goods were not transported. I have gone through the statement and analyzed the same. In fact, the transporter has stated that vehicles have been run by the drivers and no statement of the driver has been recorded nor any GR/LR has been issued. Therefore, it cannot be said that the vehicle has not transported the goods merely on the basis of the statement of the owner of the vehicle. Further, the diary was also submitted by the transporter after a gap of almost an year and that diary too has been maintained by the driver who was not called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of statement of Shri Rajendra Rana, it has been concluded that goods have not been transported without any documentary evidence. Therefore, the charge of non-transportation of the goods by vehicle No. HR/55/5278 is not proved and the allegation is set aside. (iii) Another vehicle involved is HR/55/H/7767 which is having a registered laden capacity of 3.5 MT wherein the statement of the owner of the vehicle Shri Jile Singh was recorded who stated that he doesn't know whether the vehicle was used in transportation in the goods of the appellant or not. The denial of the non transportation of goods with regard to this vehicle has been concluded on the basis of laden capacity of the vehicle. I have seen that when the goods are transported locally all the times the goods are loaded more than the laden registered capacity. But no statement of the driver was recorded and the statement of Shri Jile Singh is also not conclusive to allege that vehicle was not involved in transporting the goods of the appellant. Therefore, without having corroborative evidence that vehicle was not used in transportation of the goods, the allegation is not sustainable. Consequently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le has never transported the goods of the appellant. I have seen that vehicle was not driven by the owner of the vehicle and statements of driver has not been recorded. The transportation took place in 2006 and the statement was recorded in November 2010. It might not be in the memory of the person making the statement when he was not driving the vehicle with regard to transporting of goods. Moreover, the transporter was not maintaining the record of the goods transported by him. Therefore, the statement cannot be conclusive proof of non transportation of the goods, in the absence of any corroborative evidence. Therefore, the allegation for non involvement of this vehicle for transportation of the goods is set aside. (vii) Another vehicle was used in transportation of goods is HR/55/7239. The allegation emerges from the statement of the owner of the vehicle that the vehicles involved in transportation of goods does not have the capacity to transport such a heavy quantity of goods. I have analyzed the statement of the transporter who stated that vehicles were driven by the drivers and they have transported the goods of the appellant. But in the trade practices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds beyond registered capacity which is 4200 kgs and the invoices to transport the goods is of 7000 kgs and 15000 kgs. In this case, no statement of the transporter have been recorded and in the registration certificate vehicle is shown as HTV which means Heavy Transport Vehicle. The capacity of 4200 kgs can't be the capacity of Heavy Transport Vehicle. Therefore, the charge that vehicle was not used in transportation of goods is not sustainable without any corroborative evidence and merely on the basis of the registration certificate which itself shows that vehicle is HTV. Accordingly same is set aside. (xi) Another vehicle was used in transportation of goods is HR/55/4602. The registration certificate of the said vehicle shows that it is an HTV but registered capacity to transport the goods is 5000 kgs and invoice shows the quantity is 15000 kgs. I have seen that for HTV, the capacity of transport of the goods start from 10 MT. Further, I find that the vehicle (HTV) can transport 15000 kgs also and there might be a mistake in the registration certificate showing registered capacity of 5000 kgs for a HTV. Therefore, it cannot be alleged that vehicle has not been used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, the allegation is not sustainable. Moreover, only one instance is involved therein. There may be an error for recording the correct vehicle No. and it may be a possibility that the driver might have taken the vehicle to their office at Manesar and vehicle might have been used in transportation of the goods. But all these are assumptions and presumptions, but on the basis of assumption and presumption, it cannot be alleged the vehicle was not used in transportation of goods. The allegation on the basis of assumption and presumption are not sustainable in the absence of any corroborative evidence. Therefore, allegation is set aside. (xvi) Another vehicle was used in transportation of goods is HR/61/4366. The allegation is that the invoice was issued on the day of visit to cover the shortage. In fact, no statement of the vehicle owner was recorded. Moreover, the consignee has stated that he has received the goods. Therefore, the allegation is only on the basis of presumption which cannot be sustainable in the absence of any corroborative evidence. Therefore, said allegation is set aside. (xvii) Another vehicle was used in transportation of goods is HR/38/D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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