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TMI Blog2017 (12) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue has failed to prove that respondents have taken Cenvat credit on the strength of fake invoices but, it is only a presumption by the Revenue that the respondent has availed Cenvat credit on the invoices which appears to be fake invoice - in this case the Revenue's allegation is on presumption and assumption basis, therefore it cannot be said the Revenue has made out a case against the respondent with admissible corroborative evidences. Appeal dismissed - decided against Revenue. - Appeal No. E/11719-11720/2017 - Order No. 13772-13773/2017 - Dated:- 23-11-2017 - Mr. Ashok Jindal, Member (Judicial) For the Appellant : Shri Sameer Chitkara, AR For the Respondent : Shri S. Suriyanarayanan, Advocate ORDER Per : Mr. Ashok Jindal Revenue is in appeal against the impugned order wherein the Ld. Commissioner (A) set-aside the adjudication order and allowed the Cenvat credit to the respondents and dropped the proceedings against the Respondent. 2. The facts of the case are that the respondents procuring raw materials, namely, Peppermint Oil for production of Double/Triple rectified Peppermint Oil from M/s V. S. Industries (M/s VS for short) and availi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons done by the Central Excise, Jammu Commissionerate, it appeared that invoices issued by M/s VS were fake and no goods had been received along with the documents by the respondents. So the Cenvat credit taken thereon by the respondent was not admissible. In view of the above facts, a show cause notice was issued to the respondents proposing recovery of Cenvat credit amounting to ₹ 39,98,621/- along with interest and for imposition of penalties. The said show cause notice was adjudicated and demands proposed in the show cause notice is confirmed by the adjudicating authority. On appeal before the Ld. Commissioner (A), the demand proposed in the show cause notice by the adjudicating authority were set-aside. Aggrieved from the said order, Revenue is before me. 3. The Ld. AR appearing on behalf of the Revenue submits that as the Ld. Commissioner (A) has not examined the issue in proper perspective, therefore, the same is required to be set-aside. He further submits that the Ld. Commissioner (A) has failed to consider the fact that M/s VS, Jammu manipulated various documents. They have maintained records in respect of purported raw material procured from their suppliers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sumeet Industries Ltd. Block No.292, village karanj, tal, Mandvi, Dist. Surat and its Central Excise Registration Number is AAECS2256BXM001. (ii) M/s. Sumeet Industries Ltd. Block No.292, Village Karanj, Tal. Mandvi, Dist. Surat is limited company and it has four Directors and two promoters. (iii) They have got Central Excise Registration Number on 20.01.2003 for the manufacture of excisable goods viz. Polypropylene Multifilament falling under Ch. 5402, Grey Fabrics falling under Chapter Heading No. 5407, Mentha Oil IP falling under Chapter heading 3301 of the schedule to the Central Excise Tariff Act, 1985. (iv) He is working as manager Exports in M/s Sumeet Industries Ltd. Block No. 292 village karanj, tal, Mandvi, Dist. Surat. (v) Their final products are Polypropylene Multifilament Yarn, Grey fabrics, Mentha Oil IP, Peppermint Oil IP, Menthol Crystal, Polyester Yarn, Polyester Chips. (vi) Their raw materials for the production of Double/Triple Rectified Peppermint Oil are Peppermint Oil IP have been purchased from M/s VS industries Lane No.04, Phase III, Industrial Complex, Bari Brahmana, Jammu. (vii) Yes. They have taken Cenvat credit on invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show Cause notice issued to VS. It is but natural for any person that he would not be in a position to offer any comment regarding any investigation conducted against the other person. However, it does not mean that he had admitted that. they had taken the credit on the strength of fake invoices without receiving the goods along with invoices. When there is no independent investigation against the appellant regarding receipt of the goods, the only thing remains to be trusted is the documentary evidences. From the documents like transport documents; goods receipt notes; .challans; purchase register etc. submitted by the appellant along with their appeal, it can clearly be said that the goods were received, by them from VS in their factory premises. However, in the light of the investigation done by the Jammu Commissionerate against VS,, the adjudicating authority has made observation that the documents submitted by the appellant in form of invoices showing receipt of goods appears to be fabricated and therefore the appellant has illegally availed the credit. The words appears to be used by the adjudicating authority indicates the presumptive nature of observation. Without conducting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, investigation at the end of supplier (VS) does not reveal the fact whether they had supplied the goods to the appellant or not. When the documentary evidences are available on record and no investigation regarding receipt of goods (inputs/raw materials) by the, appellant from VS has been conducted by the department, it is to be held that the appellant had received the goods on which disputed credit was availed and accordingly the credit would have to be allowed to them. The ratio of the following judgments of the Hon ble Tribunals are applicable in the facts and circumstances of the case under appeal:- (i) Kisco Castings India Ltd. Vs. CCE ST, Chandigarh - 2015(329)ELT 556(Tri.Del); (ii) Punjab Gas Cylinders Ltd Vs CCE Chandigarh - 2015(322)ELT 747(Tri Del) (iii) Rjnox_Engg. Vs. Commissioner of Central Excise, Chandigarh-I - 2014(304)ELT 46 are rehed upon to hold the same. 10. Unless it is. established that the credit was availed on the basis of invoices only without receipt of the material, credit cannot be denied. In the case under appeal, no investigation has been conducted at the end of the appellant and the transporters to substatitiate that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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