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TMI Blog2018 (7) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... A [2017 (11) TMI 769 - CESTAT KOLKATA], where it was held that In the absence of such cross-examination and examination in chief, the statement on which the Revenue seeks to rely, have to be excluded from evidence. Appeal allowed - decided in favor of appellant. - Ex.Appeal No.75550/17 - F/O/75637/2018 - Dated:- 12-2-2018 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Shri N. K. Chowdhury, Adv. for the Appellant (s) Shri D. Halder, Asstt. Commr. (A.R.) for the Respondent (s) ORDER Per Shri P. K. Choudhary : This is an appeal filed by the Appellant against the Order-in-Appeal No. 70/Kol.VI/2016 dated 24.10.2016 passed by the Commissioner (Appeals) of Central Excise, Kolkata. 2. Briefly stated the facts of the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated 04.12.2006 stated that they purchased M.S. Round Cutting from M.K. Steels under duty paid Invoice and paid ₹ 14 Lacs by way of Account Paying Cheque. Balance amount was adjusted against sale of goods to M. K. Steels. It is seen that the entire allegation was made out against the appellant on the basis of the statement of the third party. There is no material available on record of any cash transaction between the appellant and the Dealer. Further it has failed to investigate the encashment of the cheque as stated by the Director of the appellant company. 8. The Learned Counsel submitted that the allegation against the appellant was made on the basis of records of M/s. Gontermann Peipers (I) Ltd. It is submitted that the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the same registered dealer M/s. M.K.Steels and the Revenue sought to deny the credit based upon the same investigations and same evidences. The said decision stands upheld by the Hon ble Allahabad High Court in the case of Commr. Of C.Ex., Cus. Service Tax vs. Juhi Alloys Ltd. [2014(302) E.L.T. 487(All.)]. On the similar fact the decision of the Tribunal in the case Dhakad Metal Corporation vs. Commr. Of C.Ex, S.T., Daman[2015(330) E.L.T. 561(Tri.- Ahmd.)]. As also in the case of M/s. Sunil Healthcare Ltd. vs. Commr. C.Ex., Jaipur-I[2017(2)TMI 144-Cestat, New Delhi]. c) Further, the Tribunal decision in the case of Rinox Engg. Vs. Commr. Of C.Ex., Chandigarh-I [2014(304)E.L.T. 436(Tri.- Del.)] is also to the effect that the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein by observing that as per Rule 9(3) of the Cenvat Credit Rules, 2004, the assesse is required to ensure that the inputs supplied by the dealer were accompanied with the documents and on production of such invoice, the requirements of Rule-9(3) get satisfied and it is for the Revenue to produce sufficient material evidence on record to show that the dealer who had issued the invoices were non-existence and were non-registered with the department during the relevant period. 10. Though I find that all the above decisions are fully applicable to the facts of the present case but a special reference can be made to the Tribunal s latest decision in the case of Commr. Of C.Ex., Lucknow vs. M/s. Premier Alloys Ltd. [2015(7) TMI 1173-CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for availing the credit. As such it seems that the said order was passed in the light of concession made by the appellant and has no relevance in the present case, especially when the same supplies made by the same M/s. M.K.Steels stand held as cenvatable by the Hon ble Allahabad High Court. 13. As such by following the above decision, which in turn is based upon the Allahabad High Court decision in the case of Juhi Alloys Ltd. , I set aside the impugned order and allow both the appeals with consequential relief to the appellants . 10. I find that on the identical situation the Tribunal already set aside the Order in the case of Gontermann Peipers (I) Limited. After considering the evidences and the proper analysis of the case law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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