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TMI Blog2018 (4) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings and as such it should be assumed that the credit was availed by the appellant without actually receiving the material covered by the said invoices, cannot be appreciated, inasmuch as the facts of each and every case are required to be appreciated independently and no assumption can take place of legal evidence. Appeal allowed - decided in favor of appellant. - E/2134 & 2135/06 - A/85649-85650/2018 - Dated:- 6-3-2018 - MRS. ARCHANA WADHWA, MMBER (JUDICIAL) AND SHRI RAJU, MEMBERE (TECHNICAL) Appearance: Shri Chirag Shetty, Advocate for Appellant Shri M.R. Melvin, Supdt. (AR) for Respondent Per: Archana Wadhwa Both the appeals are being disposed of by a common order as they arise out of the same impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of which the credit was availed. Revenue officers also found that around 11 trucks loaded with bazaar scrap and not covered with any Central Excise invoices were standing outside their factory premises. As per the appellant, no credit was to be availed in respect of the said scrap. 2.3 On the above basis, proceedings were initiated against the appellant by way of issuance of show-cause notice proposing confirmation of demand of duty to the extent of ₹ 52,36,632/-, on the allegations of clandestine removal. Notice also proposed to deny the CENVAT Credit of ₹ 7,71,071/- availed by the appellant in respect of scrap covered by the duty paying documents, on the ground that the appellant had procured bazaar scrap from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne removal. Law is well settled and reference can be made to the Tribunal s decision in the case of Shivalaya Ispat Power Ltd. 2017 (357) ELT 742 (Tri-Del), Vam Organic Chemical Ltd. 2016 (342) ELT 174 (All.) and Continental Cement Company 2014 (309) ELT 411 (All.). 3.1 Further, the Hon'ble High Court of Punjab Haryana in the case of Anand Founders Engineers 2016 (331) ELT 340 (P H) has again held that mere shortages, which would stand accepted in the statement of the representative of the manufacturer cannot be held to be attributable to clandestine activities of the assessee. The Hon'ble Allahabad High Court in the case of Vam Organic Chemical Ltd. (supra), has again upheld the order holding that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned AR on the precedent decision of the Tribunal in the case of Steel India Company 2014 (310) ELT 184 (Tri-Mum) cannot advance the Revenue s case, inasmuch as we note that there was lot of evidence in that case indicating that the suppliers were making supplies of bazaar scrap instead of the industrial generated scrap; that the ship-breaking units, who supplied ship breaking scrap under the cover of invoices were found to be not existent; that the Sales Tax authorities at the checkpost confirmed no movement of ship-breaking scrap. It was in these circumstances, Tribunal observed that the onus get shifted to the assessee to prove the receipt of the goods covered by the invoices. 3.4 We note that in the present case, no such evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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