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TMI Blog2016 (6) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty interest and penalty alleging fraudulent availment of Cenvat Credit on goods imported vide Bill of Entry without actual receipt of the goods into the factory. The appeal No.E/1242/2011 is with regard to goods imported vide B/E No.426 225 dated 16-05-2005 and appeal No.E/1243/2011 is the penalty proceedings against co-notices. The appeal No.E/1266/2011 is with regard to goods imported vide B/E No.412403, dated 07-03-2005 and appeal No.E/1267/2011 is again the penalty proceedings against co-notices. The issue involved in all the above appeals being the same and the show cause notices having been issued from the same investigation process, the appeals were heard together and are disposed by this common order. 3. The appellants are man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of facts and evidence in the present case. "Verification of case records reveals that the appellants had irregularly availed cenvat credit of Rs. 7,17,415/- based on the Bill of Entry No.426225 dated 16-05-2005 without actual receipt and consumption of raw material mentioned therein, in contravention of above mentioned Cenvat Credit Rules, 2004 by adopting modus operandi as deposed in the statement dated 02-07-2008 by Sri V.K.Janaki Ram, Authorised Signatory of the appellant company before the Investigating Agency and the same was corroborated by the statement sof Sri Dilip Kothari, Proprietor of M/s Metal Udyog, Secunderabad, Srti Satish Agarwal,partner of M/s Time and Space Haulers,Mumbai, Sri Praveeen Agarwal, Parnter of M/s Ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affidavit of Sri Satish Agarwal, Partner of the transport company as the contents therein are after thought preparations to safeguard the malafide intentions of the appellants. In this regard, I concur with the findings of the respondent made in his impugned order. In view of the above, I find no force in the contentions of the appellants and the case laws relied by the appellants are distinguishable to the issue on hand since the authorized signatory of the appellant company had admitted the modus operandi in availment of Cenvat Credit fraudulently without actual receipt of the raw material in their factory premises and the same has been corroborated by the Partner of Transport Company. Form this, it is evident that the appellants had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the actual importers from whom goods were purchased and payments to CHA, transporters and others was made by way of cheques. (ii) The department has not adduced any evidence to prove that the imported goods were diverted to another place from Delhi. There is no evidence that they were not transported to Hyderabad or that they did not reach the appellants factory. The entries in the statutory records are proper and no discrepancy was found. There is no evidence that appellant made any cash transactions other than those entered in books. Further, though department alleges that the inputs were diverted there is no evidence to even suggest that appellant had procured inputs from elsewhere to substitute the diverted inputs. That during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods from Dinesh International and Vipin Enterprises at New Delhi and goods were diverted at New Delhi itself, the statement of suppliers of the goods was not recorded. No enquiry was made about the alleged diversion or cash flow. (vii) Though it is alleged that the CHA, J.M.Baxi cleared the goods for the importer and that he received the money in cheque and later returned the same as cash, the statement of CHA was not recorded. (viii) The statement of the transporter at Delhi was not taken and also the statement of the Owner/Driver of vehicles in which the appellants contend that the goods were transported was not recorded. (ix) The appellant produced the weighment slips to establish that the goods were received in the factory. Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout reaching the factory, then there should surely be evidence let in to show how the appellants have substituted the raw material since the statutory records show production and clearance of finished goods on payment of duty. There is absolutely no evidence to show the substitution of raw material which in my view would cut the root of the allegation as the statutory records show that goods were manufactured. No shortage of raw material was detected during enquiry. 9. Apart from the above, the statement of the transporter Shri Satish Agarwal has been retracted before a Magistrate and Sri Janakiram in cross examination retracted his statement and also deposed that his statement was recorded under duress. The case of the department is bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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