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TMI Blog2017 (9) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... . brokers or by manufacturers of ingots or was used in cash to purchase bazaari scrap/scavenger scrap, the demand upheld. The supplier M/s. Ispat Industries Ltd and M/s. JSW Steel Ltd have cleared the HR Trimming on payment of duty by issuing invoices in favor of person whose name were given by the auctioneer. The goods were sold at factory gate therefore act of fraudulent availment of credit which has taken place after removal of goods from factory, the appellant M/s. Ispat Industries Ltd and M/s. JSW Steel Ltd had no control therefore penalties imposed under Rule 26 on these appellant is not proper. Appeal allowed - decided in favor of appellant. - E/1092, 1230, 1231, 1236, 1341/10-MUM - A/88708-88712/2017/SMB - Dated:- 27-7-2017 - Mr Ramesh Nair, Member(Judicial) Shri. Shri. Nikhil Rungta, Advocate for Chandrakant Nathwani, Ms. Padmavati Patil, Advocate for JSW Steel Ltd and Shri.R.K Jain Advocate for Ispat Industries Ltd. None for Shri. Harikishan b. Sonejai and Shri. Manish Ramavatar Agarwal for the Appellants Shri. Ajay Kumar, Addl. Commissioner(A.R.) for the Respondent ORDER The fact of the case is that M/s. Chandra Ispat Limited are engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter appellant has no responsibility. Similar submissions were made by Shri.R.K Jain Ld. Advocate for Ispat Industries Ltd. He submits that appellant cleared the goods at the factory gate on payment of duty therefore penalty under Rule 26 is not imposable as the appellant have not dealt with any goods which are liable for confiscation, for the reason that goods cleared by the Ispat Industries Ltd is on payment of duty and duty paid goods is not liable for confiscation. Ld. Counsels appearing on behalf of the M/s. JSW Steel Ltd and Ispat Industries Ltd relied upon judgment in case of Commissioner of C. Ex. Aurangabad Vs. Ispat Industries Ltd[2010(261) ELT 1059(Tri. Mumbai)]. 3. Shri. Nikhil Rungta, Ld. Counsel appearing on behalf of Chandrakant Nathwani, submits that appellant is not involved in issuing of any invoice on which fraudulent Cenvat credit was availed therefore it cannot be said that appellant has abated in issuing invoices therefore appellant is not liable for penalty under Rule 26(2). He further submits that goods which was dealt by the appellant was duty paid therefore same was not liable for confiscation, hence penalty under Rule 26 coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices. Invoices are pertaining to HR trimmings. Revenue's case is that the said HR trimmings were transported from Jindals, Vasind/Tarapur to Viramgam based dealers/SSI units while the corresponding invoices were made in the name of the main appellant and the said invoices did not travel along with the goods, but only the invoices were received by the main appellant and they took credit on the basis of such invoices without receiving the HR trimmings. During the investigation, the main appellant and their officials including appellant No.2 were specifically asked whether they have any evidence whatsoever to prove that the goods viz. HR trimmings covered by the said invoices were transported to their factory and received in their factory. The appellants could not produce copy of the Gate register, goods receipt note or LR or even any document evidencing payment of freight charges to the driver/transporter in respect of each invoice (whether paid in cash or by any other means). The appellant's main contention was that they have paid for the goods through banking channels and if at all the goods were not supplied, it is because of the manipulation by the supplier. We are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transported to Gujarat and not to the factory premises of M/s. AIPL. (iv) - viii) From the records of M/s. Gayatri Transport Service it was found that the goods covered under invoice No. 12109063 dated 31/2003 of M/s. JISCO, Tarapur issued in favour of M/s. AIPL was transported to Satej in vehicle No. GJ 11 W 2910. (v) - iv) Further from the records of M/s. Star Industries, Tarapur it was found that goods consigned to M/s. AIPL from M/s. JISCO, Vasind under invoice No. 1306515 dated 11.9.2003 and 1307516 dated 11.10.2003 through vehicle No. MCT 5101 and MCU 1051 respectively were in fact delivered to M/s. Star Industries, Tarapur. (vi) - iii) Shri Janedrasingh Ramsingh Sodha residing at Jamnagar, Gujarat vide letter dated 2.8.2004 owner of vehicle No. GJ 10 U 4367 stated that they had loaded the above vehicle from Diamond Transport during the period April, 2000 to December, 2003 for Gujarat. The said vehicle is appearing on following invoices. Sr. No. Name of the supplier Factory location Invoice No. Date 1 Jindal Iron and Steel Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selves did not produce a single evidence that the HR trimmings were transported to their factory and were received in their factory. They have also not given any explanation with reference to the records recovered from various transporters. Thus, even if the statements of the co-noticees are ignored, the demand will still hold good. If the main appellant would have produced some evidence to contradict Revenue's claim, we would perhaps be inclined to hold that denial of cross-examination has prejudiced their case. This Tribunal in the case of Jagdish Shanker Trivedi (supra) has observed as under:- 7. We first take up the contention that there was denial of principles of natural justice by not offering the witnesses for cross-examination by the appellant Ashish Kumar Chaurasia, despite his request that all witnesses should be examined. We have already noted that the appellant, Ashish Kumar Chaurasia had cross-examined two officers on 19-6-1995. It also transpires that summons were sent to Ram Avatar Singhal, Ram Kumar Mishra and Ram Bilas Mandal (driver), Jagdish Shanker Trivedi and Dilip Kumar Singhal, who refused to be cross-examined on the ground that they cannot be comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rokers based in Mumbai and were purchasing the HR trimmings from manufacturers such as Jindals in this case. Later on. the HR trimmings were going to Viramgam. Since the invoices of such HR trimmings were of no use to them, they were trading the invoices through brokers based in Mumbai who in turn were locating the furnace units who could fraudulently avail the credit based on such invoices. The cash amount of HR trimmings being sent through angadia or other services from Viramgam and nearby area and were being converted into Bank Draft etc. through banking channels either by such. brokers or by manufacturers of ingots or was used in cash to purchase bazaari scrap/scavenger scrap. In view of the above position, we have no hesitation in holding that the demand and penalty imposed on the main appellant is correct and the appeal of the main appellant is, therefore, dismissed. Appellant's contention on limitation is also rejected as this is clear cut case of fraud as credit is availed without receiving the duty paid goods covered by the corresponding invoices. On going through decisions of this Tribunal in cases of Amar Ispat Pvt Ltd (supra) I find that facts, and other cases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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