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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 ..... Shri Prabhakar. - Demand set aside - Decided in favor of assessee. - Appeal No. E/258 & 826/2010 - - - Dated:- 18-5-2016 - Ms. Sulekha Beevi, C.S. Member(Judicial) Shri Raj Kumar Maji, AR for the Appellant Shri M. V. S. Prasad, Advocate for the Respondent ORDER [Order per Sulekha Beevi, C.S.] 1. The issue arising for consideration in the above two appeals being the same, they were heard together and are disposed by this common order. 2. E/258/2010 is an appeal filed by Revenue against the Order-in-Appeal dated 31-03-2009 passed by Commissioner(Appeals) which set aside the demand, interest and penalty which was raised on the allegation of wrongful availment of Cenvat credit without actual receipt of goods. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and job work register showed discrepancies. The stores inward register showed three types of discrepancies. i) In certain cases, the goods purported to have been received from ALL are not entered in these registers. ii) In certain cases, the entries relating to the goods purported to have been received from AAL and KMC were inserted between two entries and were given the same serial numbers of the earlier entries but suffixed with Alphabet A iii) In certain cases, the entries relating to the goods purported to have been received from AAL and KMC and not in chronological order. 5. The investigation started on recovery of private records from the premises of one Shri Prabhakar who was an employee on KMC. The statement of Shri Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and there would be negative balances at the end of the financial year, which however is not the case. Hence, I find adequate force in the contention of the respondents in as much as it is not the case of investigation that there was any shortage of physical stocks vis-a-vis the recorded book stock at the time of search. The Chartered Accountant s certificate reconciling the materials received/sold and remaining in balance lends credence to the respondents contentions. The allegation that the unit at Gazillapur had no facility to roll sheets of less than 3mm falls flat in the light of the certificate of AP Productivity Council to the contrary. As regards the reliance placed on various statements by the Investigation to sustain the charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no incentive for such substitution as the price range of the sheets is more or less same and such sheets are manufactured only by reputed manufacturers and clandestine source of procurement from such manufacturers is not possible except that the source can be by way of diversion from other customers who do not need such sheets. But, this probability is also ruled out, as there is no incentive for doing all this exercise either at the appellants end or at the dealers end as in that case, the sheets invoiced would need to be diverted to some other manufacturer or customer on kacha bills. The dealer does not gain anything in diversion and substitution and the manufacturer also does not gain anything. Therefore, the allegation of diversion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have got reflected in their inventory and there would be negative balances at the end of the financial year, which however is not the case. Hence, I find adequate force in the contention of the appellants in as much as it is not the case of investigation that there was any shortage of physical stocks vis-a-vis the recorded book stock at the time of search. As regards, the reliance placed 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 11. This Tribunal in the final Order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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