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TMI Blog2016 (5) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant has procured Bura Scrap from M/s Nandan Autotech Ltd. to the tune of 144.860 MT but the enquiry revealed that M/s AAL received only the invoices and not actually the Bura scrap. It was admitted by Sh. Darbara Singh Authorised Signatory of M/s AAL and voluntarily debited an amount of cenvat credit availed towards that. It was also found that there was a shortage of 6.205 MT of M.S. Ingots for which duty was paid immediately. On further investigation towards R-12 and ER-1 filed by the appellant, it revealed that M/s AAL procured furnace oil from M/s Lakra Oil Trading, M/s Durolines Products Pvt. Ltd., G.L. Khanna & Sons, M/s Reliance Petroleum Ltd., M/s Reliance Industries Ltd. the details were also sought from Assistant Excise and Taxation Commissioner of Punjab to find out the fact whether the furnace oil supplied by the supplier mentioned hereinabove had the cross the border of Punjab and there transactions were entered at ICC or not. The report was obtained wherein it has been stated by the Punjab Excise Taxation Department that there were no such entries at ICC of furnace oil for which the details were sought. Later on, statement of suppliers/transporters were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransports Authorities, whereas tankers are required fro transportation of the said goods. (ii) Sh. Darbara Singh, Authorised Signatory of the party admitted that most of the purchases of FO were bogus and that only the invoices were received. He also admitted that Bura scrap was not received from M/s Nandan Auto Tech Ltd.and only the invoices were received by the party for taking Cenvat Credit and that the ingots found short at the time of search were removed clandestine. (iii) (a) The kachha Ledger recovered from the premises of M/s LOTC (of Sh. Praveen Kumar Garg) has details regarding receipt of cheques from the party for the purported purchase of the said goods as well as the details of cash amounts equal to the cheque amount received from the actual buyers of the said goods. The said cash amounts were given by Sh. Praveen Kumar Garg to Sh. N.D. Garg, Director of the party, who deposited the same in the Bank of Punjab, Khan Market, New Delhi, account of M/s Brightwell Enterprises, a firm floated by Sh. N.D. Garg, acting as proprietor of the same. (b) Sh. Praveen Kumar Garg admitted that the entries in the said Kachcha Ledger indicated the amounts of cash paid to Sh. N.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute have been received by the appellant and the same has been shown by the appellant in their VAT/Sales tax Return. He further submits that the revenue is heavily relied on the statement of Sh. Praveen Kumar Garg proprietor of M/s LOT. The statement cannot be relied upon, as the same was retracted very next date and no further statement of Sh. Praveen Kumar Garg was ever recorded and the appellant specifically asked for cross examination of Sh. Praveen Kumar Garg but they were never granted, therefore, the statement of Sh. Praveen Kumar Garg cannot be relied upon in the light of the decision Hon'ble High Court of Delhi in the case of Vishnu & Co. Pvt.Ltd. 2016(332) ELT 793 (Del.). He further submits that the transporters have stated in their statement that they have transported the goods for M/s G.L. Khanna and goods have been reached to the destination and the statement have not been controverted by revenue with positive evidence. He further stated that the expert opinion obtained on National Institute of Secondary Steel Technology cannot be relied upon as the same is vauge/ general statement. In these circumstances, it is prayed that the impugned order to be set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cenvat credit on Bura scrap is denied. Consequently, the appellant is liable to pay duty thereon alognwith interest. As appellant has already reversed the cenvat credit therefore, appellant is required to pay interest for the intervening period within 30 days from today. 8. I also find that there was some shortage of the finished goods found during the course of investigation. Considering the fact that the appellant has already paid duty thereon and the quantity found short is a meagre one therefore the same is confirmed. 9. For denial of cenvat credit on furnace oil, the case of revenue has relied on the following evidences. A. no entry of vehicle no at ICC B. The statement of transporter/suppliers and C. the expert opinion of NISST 10. The case of the revenue is that the furnace oil never cross the border of Punjab as the vehicle no. were not found entered at ICC. The purpose of setting of ICC is to establish that the goods which are entering in the Punjab have suffered VAT/C. Sales Tax/ Sales Tax. This fact has been certified by the concern Excise Officer Ludhiana by certifying that the appellant has suffered CST/ST/VAT on the invoices in question. Therefore, merely, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore these Kucha Ledger is not admissible as evidence. During the course of argument, the Ld. AR submits that M/s Ritco Kirti Associate (P) Ltd. has produced for cross examination. In fact the initially statement of Sh. Sanjeev Kumar of M/s Ritco Kirti Associate (P) Ltd was recorded but for cross examination, Sh. Mukesh was produced. As the person who made the statement was not produced ,the cross examination of the third person is not relevant to reveal the truth. In that circumstances, as the revenue fails the produce Sh. Sanjeev Kumar for cross examination (on) the statement of M/s Ritco Kirti Associate (P) Ltd. is not admissible at all. 13. Further, I find that the revenue is relied on the opinion obtained from the NISST to the extent that furnace oil is not required for the appellant for operation of their furnace or induction furnace. In fact the person gave the opinion have never visited the factory premises to the appellant and made a general statement. On the other hand, the appellant has produced the certificate issued by the chartered Engineer who has physically visited the factory and stated that furnace oil is required for the running of induction furnace of th ..... 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