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TMI Blog2016 (6) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation of wrongful availment of Cenvat credit without actual receipt of goods. During the investigation, the respondents had deposited Rs. 3,00,000/- by way of TR-6 Challan dated 07-06-2007. The adjudicating authority had dropped the proceedings initiated by the show cause notice issued alleging wrongful availement of credit without actual receipt of goods. The Commissioner (Appeals) vide order dated 31-03-2009( which is challenged by department in Appeal No.E/258/2010) upheld the order of the adjudicating authority. Meanwhile, the respondents filed refund claim for refund of Rs. 3,00,000/- paid during investigation. The original authority sanctioned refund which was upheld by the Commissioner (Appeals) vide order dated 21-10-2010. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Prabhakar who was an employee on KMC. The statement of Shri Prabhakar was recorded. But he is not a noticee in any of the proceedings. After examination of the records and the arguments advanced, it is come to light that in the present case all the statutory records were in order. There was no discrepancies in such records. The whole evidence to issue the show cause notice is based on statements and private records of third party. The learned AR contended that the statement made by Shri Peddi Raju, central Excise in charge of AAL correlate with statement of Shri G.Venkata Rao of the respondent company. That the statements being correlated would establish probability of the fact that respondents were indulging in wrongful availment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on various statements by the Investigation to sustain the charges, I am to observe that mere statements are not enough to confirm the allegations as held by various judicial fora in several cases. In the absence of corroborative evidence, mere reliance on statements is of no help to the department s case". 6. On analysation of the evidence before me, I do find merit in the conclusion made by the Commissioner(Appeals). The authority below has rightly placed reliance on the judgment of the Tribunal in the case of M/s Lloyds Metal engineering Ltd 2004(175) ELT 132(Tri-Mum). 7. In addition, it has to be stated that in connected matters of co-noticees, this Tribunal as well as Commissioner(Appeals) and original authority have analysed the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot gain anything. Therefore, the allegation of diversion or non use of sheets, in my view, is not sustained for lack of evidence and the corresponding demand, therefore is liable to be set aside. " 9. In Order-in-Appeal No.101/2009, dated 11-12-2009 in the appeal filed by M/s Sri Lakshmi Industries Ltd, the Commissioner (Appeals) observed as below: " The truth or the real face would be known if the stock register and stocks of inputs were verified with corresponding invoices. Moreover, in the absence of any statements recorded from the partners of KMC with reference to the private records maintained by Shri Prabhakar, Manager, the denial of credit in my view, will be based on surmises and presumptions which is not held sustainable. Sh. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. This Tribunal in the final Order dated 20-01-2016, in the case of M/s Sri Lakshmi Industries Ltd and another has analyzed the very same evidence and has set aside the demand raised on the allegation of fraudulent availment of credit on invoices issued by KMC. After examining the evidences presented by this case, I do not find any ground to take a different view. The whole case is founded on statements and private records of third party, Shri Prabhakar. 12. The Tribunal in the case of CCE, Jaipur Vs Shiv Prasad Mills(P)Ltd 2015(329) ELT 250(Tri- Del) held that the allegation of duty evasion cannot be made basing upon private records and statement of a third party unless cross examination of such person is allowed. It is settled law that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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