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TMI Blog2018 (5) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory by pointing out the discrepancy in the input invoice, that is, wrong entry of vehicle number, now it is the turn of the Appellant to explain the discrepancy to establish the fact that the quantity of inputs mentioned in the invoices have been received in the factory and utilized in the manufacture of finished goods by adducing positive evidence - the quantity of inputs mentioned in the 58 invoices involving a total credit of ₹ 18,26,413/- had not been received in the factory and the credit was availed only on the input invoices - demand with interest and penalty upheld. Credit of ₹ 9,21,624/- availed against 27 invoices - Held that: - Except few statements of vehicle owners/representatives, the competence of the said persons to furnish such statement also being in dispute, and in absence of other corroborative evidence placed by the Revenue, to substantiate the allegation that the quantity of inputs mentioned in the invoices, where the capability of the vehicle mentioned in these invoices are not disputed, it is difficult to sustain the allegation of non receipt of the inputs against these set of input invoices - credit allowed - demand with interest and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave correctly availed CENVAT credit on the invoices issued by the registered dealers namely, M/s Goodluck Empire and M/s Jenil Empire during the period 2006-07 and 2007-08. It is his contention that the inputs have been duly received and accounted for in their statutory records and consumed/utilized in the manufacture of final product in the factory of the appellants, and the final products were later cleared on payment of duty. Ld. Advocate further submitted that the authorities below on the basis of evidences of the authorized persons of the vehicle owners, whose vehicle numbers were mentioned in the invoices stated to have not ferried their vehicle, and report of the RTO authority that the vehicles shown in the respective invoices were incapable of carrying the inputs, had confirmed the demand observing that the appellants had wrongly availed CENVAT credit on the invoices only without receipt of inputs in the factory. 4. Assailing the impugned Order he has submitted that the authorities below have denied the credit even though there was no allegation by the Department questioning the duty paid character of the inputs in the respective invoices and that the same was duly accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion, he has referred to the judgment of this Tribunal in the case of Motabhai Iron Steel Industries vs. C.C.E., Ahmedabad 2014 (302) ELT 69 (Tri-Ahmd.); C.C.E., Raigad vs. Jay Iron Steel Industries Ltd. 2015 (325) ELT 130 (Tri-Mumbai); Parmatma Singh Jitender Singh Alloys P.. Ltd. vs. C.C.E., Ludhiana 2012 (25) STR 281 (Tri.- Delhi); BMA Zinc Pvt. Ltd. vs. C.C.E.,Jaipur 2005 (191) ELT 792 (Tri-Del.); C.C.E., Chandigarh vs. Shakti Roll Cold Strips Pvt. Ltd. 2008 (229) ELT 661 (P H). 7. Per contra, the ld. A.R for the Revenue has submitted that investigation commenced against registered dealers, namely, M/s Goodluck Empire and M/s Jenil Empire, for which intelligence received by the officers that fraudulent cenvatable invoices were issued by these dealers without supplying of inputs to the Appellant Company. Consequently, their premises were searched and on investigation, it revealed that invoices were only issued by them, without movement of the goods to the premises of the appellant company, M/s Universal Metals Company Ltd. and the entire transaction was on paper only. The investigating officers have collected evidence in the form of statements of owners of the vehicle/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Rules, the inputs not only to be duty paid, but also must have been received and utilized in or in relation to the manufacture of final products in the factory premises. Therefore, mere payment of specified duty as shown in the input invoices is not sufficient, but it is quite essential for a manufacturer to establish, by adducing evidences, that besides appropriate duty has been paid, as shown in the respective input invoices, and eligible to credit, the quantity of inputs mentioned in the input invoices have also been received and used in the factory in or in relation to the manufacture of finished goods. 10. In the present case, the allegation of the Department is that the appellants have not received the duty paid inputs in their factory, but wrongly availed the credit of the duty paid against respective input invoices; thus it is paper transaction only. 11. Out of the total confirmed demand amount of ₹ 27,49,037/-, Revenue has alleged that credit of ₹ 18,27,413/- has been availed against 58 invoices by the appellant, where the RTO report revealed that the vehicle numbers mentioned in the said invoices are incapable of carrying the quantity of inputs m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the vehicles in question were of two wheelers and auto-rickshaws which allegedly transported tonnes of goods to the factory premises of the assessee. The assessee did not dispute the RTO reports, but canvassed that the entries in the record could have been made erroneously and hence discrepancy. From the stage of the show cause notice itself, it was alternatively suggested that in view of the short-fall in the stock in the premises of the assessee at the time of checking, even if the goods were actually received, the same were removed without payment of duty or reversal of the cenvat credit. The assessee contended that the goods were of inferior quality and therefore not possible to put to use for manufacture and the same was therefore sold in the local market. The Adjudicating Authority held that even in such a scenario, the assessee was required to reverse the cenvat credit which it was not done. In addition to the main finding that the assessee evaded payment of duty, the authority also based its order in original on the alternative plank, namely, even if the goods were received, the same were removed, as per the admission of the assessee, without reversal of the cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the input invoices, which are relevant to avail of credit of the duty mentioned in the said invoices. Had it been a situation where credit of the duty paid is admissible without any requirement of receipt of goods, then the record maintained by the Appellant showing payment of the duty amount shown in the invoices by them to the dealers would have been enough to allow credit. But, the requirement of the Rules framed for allowing credit is that not only duty must have been paid against respective invoices, but also the inputs mentioned in the invoices must have been received in the factory and utilized by the assessee in the manufacture of finished goods. In the present case there is no dispute about the first condition of eligibility of payment of specified duty shown on the invoices, whereas the dispute centres round the second condition of eligibility i.e. receipt and use in the manufacture of finished goods. In my view the Revenue has discharged its burden when it claimed that goods had not been received in the factory by pointing out the discrepancy in the input invoice, that is, wrong entry of vehicle number, now it is the turn of the Appellant to explain the discrepancy to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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