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TMI Blog2018 (5) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... edit in respect of inputs used in the manufacturing of final products. 3. Information was received by the Directorate General of Central DGCEI that one Shri Amit Gupta was operating dealers companies namely:- 1. M/s. Progressive Alloys India (P) Ltd. (M/s. PAIPL in short); 2. M/s. Brilliant Metals (P ) Ltd. (M/s. BMPL in short); 3. M/s Unnati Alloys (P) Ltd. (M/s. UAPL in short); 4. M/s. Moral Alloys (P) Ltd. (M/s. MAPL in short); 5. M/s. Forward Minerals & Metals (P) Ltd. (M/s. FMMPL in short); 6. M/s. Sanskar Sales Corporation ( M/s. SSC in short) ; and 7. M/s. ONS Metal ( M/s. ONS in short). 4. These companies were issuing invoices with intent to passing enormous amounts of inadmissible cenvat credit to various manufacturers and dealers without delivery of goods. Being Central Excise registered dealers by issue of only invoices, these companies were issuing cenvatable invoices of the said imported and indigenously procured goods without supply of goods to the numerous manufacturers who used to manufacture the final products out of the market scrap which is cheaper in rates. One such company is M/s. Multi Metals Ltd. (appellants). 5. It is the case of the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er plants e. Oil refineries f. Defence ordnance g. Ship building and repair h. Heat exchange and coolers manufacturing 9. These companies require the product of a high standard of quality as the receiving companies are operating in fields such as atomic energy, power, defence, oil refining etc. so the quality of the product is of utmost importance. The quality cannot be achieved using the scrap purchased from the open market in cash. It is the submission of the learned counsel that out of total manufacturing turn over of the appellant over 50% is made up of exports turn over. There is no doubt about the genuineness of export sales of the company. Therefore, when the sales were genuine, then such genuine sale is possible only with genuine purchase of raw material. 10. Learned Counsel continued to argue that only superior quality of raw material is used so that, the output can be of high standard. So, the allegation that they were receiving only invoices from the suppliers without accompanying the goods, for fraudulent availing of cenvat credit is not sustainable. 11. The department did not carry out the physical verification of the stock of raw materials and finished good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngth of written submissions, submits that the appellant had co-operated with the department and allegation against the appellant in the notice is "further dealer firms namely, M/s. V K Enterprises; M/s. Maruti Metal Industries have also indulged in passing on inadmissible Cenvat credit without actual delivery of goods." Learned Counsel submits that appellant duly purchased the goods under proper invoices evidencing payment of appropriate amount of Central Excise duty, VAT and other taxes, entered the details in the dealer's register and thereafter, at the time of issue of cenvatable invoices paid the proportionate amount of duty, maintained proper accounts and filed returns which were subjected to scrutiny by the jurisdictional Central Excise officers. It is the submission of the learned counsel that for all the transactions of purchase and sale of the goods payments were made through banking channel and the appellant took reasonable precaution to purchase the goods from registered dealer therefore, the appellant is not liable for penalty. For this purpose, he relied on the ratio laid down by Hon'ble Allahabad High Court in the case of CCE vs. Juhi Alloys Ltd. [2014 (302) ELT 487 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Metkam Industries on the bilties of Leo Trans and logistics, it was argued that the said bilties are genuine and issued by the proprietary firm. 20. All other Counsels adopted the above arguments. 21. On the other hand, learned representative for the department justified the impugned order. He submits that search was conducted by DGCEI on 6.12.2012. The inquiries were conducted from Shri Amit Gupta, controller of dealer companies. According to him, his companies were engaged in importing metals like copper, zinc, nickel, tine in prime condition and selling the said goods as per the requirement of customers / manufacturers. They supplied only the bills of the said companies to avail cenvat credit without physical delivery of the goods under such cenvatable invoices. 22. Shri Amit Gupta in his statement on 6.12.2012 stated that his godown in Sadar Bazar was not declared to the Central Excise department. The said godown was used for storage and clearance of imported prime metals in the market without bills in cash under kachha parchi. He submitted that cash was generated by sale of prime metal in the market in cash without bill. Search was also conducted at the office premises of L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the impugned order, the departmental officers expressed doubt about the genuineness of sales of the appellant company which is about 50% of the total turn over. Therefore, when the sales are genuine, then such genuine sales is possible only with genuine purchase of standard raw material. The allegation that appellant was procuring the same from the open market on cash basis, is not sustainable for the reason that the appellant has to maintain higher standard of quality to make major supplies either for export or to the companies which are operating in atomic energy, power, defence, oil refining etc. In the instant case, no physical verification of stock was done. No shortage of physical stock was identified. 27. Regarding the allegation that payment was made through banking channel and was received back in cash is not sustainable for the reason that no cash was seized from the appellants premises. 28. Department has made out a case of irregular availment of cenvat credit mainly based on the statement of Shri Amit Gupta and transporters, but no cross examination of the witnesses was provided to the appellants. One of the witnesses has retracted his earlier statement. Surprisingl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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