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TMI Blog2018 (7) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... on the strength of invoices issued by various raw material suppliers as they have fraudulently passed on the Cenvat Credit by issuing invoice only without actual supply of material. Searches were carried out by the Central Excise Officers at the factory premises as well as business premises of the appellant and certain documents were withdrawn for further investigation. The investigation was carried out with respect to the vehicles mentioned in the input invoices used for transporting the goods from inputs/ raw materials suppliers to the appellant. The details of the vehicle numbers mentioned in the invoices were called for from various RTO and weighbridge owners. The reports received from various RTOs, revealed that the vehicles used for carrying the raw materials from the supplier of the raw materials to the appellant factory were loading rickshaw, passenger rickshaw, Maruti van, LMV Taxi, LMV Trailer, Motor Cycle, LMV Tanker, Public Bus etc. The said vehicles do not have capacity to carry the goods mentioned in the invoices. Further investigation was carried out with the transport vehicle owners/ agents who have denied the transportation of goods under the concern invoices. Some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the suppliers, details of other transporters in respect of payment made by the suppliers are evident from the records. He submits that the appellant procured approximately 41030 MT during the disputed period out of which the allegation of wrong availment of credit is only in respect of 521.99 MT which is less than 2% of the total procurement of the materials. For such a small portion, the discrepancy as regard vehicle number is obvious. He submits that the Revenue failed to establish beyond doubt that the goods received were only on paper and physically there was no receipt of goods by the appellant. The Revenue has not shown anything on record to establish that the goods were not physically received as well as completely ignored the documents and exculpatory statements of the supplier showing that the goods were actually transported. In this regard, he placed reliance on the following judgments: Classic Strips Ltd. Vs CCE 2016 (339) ELT 144 (Tri. Mum) Motabhai Iron & Steel Industries Vs CCE Ahmedabad-II 2014 (302) ELT 69 (Tri. Ahd) which was affirmed by the Hon'ble Gujarat High Court reported at- Commr. Vs Motabhai Iron & Steel Industries 2015 (316) ELT 374 (Guj.) Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced reliance on the judgment of: Veer Enterprises vs CCE 2015 (319) ELT 305 Anj Metal recycling Pvt. Ltd. Vs CCE 2016 (337) ELT 453 (Tri. Chan.) 3. Sh. J. Nagori, Ld. AR appearing on behalf of the appellant submits that there is no dispute that the transport vehicles shown to have been used in the invoices for transportation of inputs by the supplier to the appellant were reported by the RTO that those vehicles are not capable of transporting the inputs. Therefore, this evidence itself is sufficient to establish that the inputs were not transported and received by the appellant. He further submits that two transporters have admitted that the goods were not transported to the appellant. In support, he relied upon the following judgments: Harsaran Dass Sita Ram vs CCE 2015 (322) ELT 686 (P&H) Gyscoal Alloys Ltd. Vs CCE 2014 (35) STR 199 (Guj.) Agarwal Metals & Alloys vs CCE Surat - II 2013-TIOL-854-CESTAT-AHM Viraj Alloys Ltd. Vs CCE Thane-II 2004 (177) ELT 892 (Tri-Mum) Genius Electricals & Electronics Pvt. Ltd. Vs CCE 2018-TIOL-463-CESTAT-DEL A & S Textiles Ltd. Vs CCE Coimbatore 2018-TIOL-1308-CESTAT-MAD 4. Ld. Counsel in his rejoinder filed by the written subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial flow back; i) Service tax payment in respect of transportation of goods was made which establish transportation of goods. He submits that even though jurisdictional Gujarat High Court after passing the order in the case of Gyscoal Alloys Ltd. (supra), dealing with similar issue in the case of Motabhai Iron & Steel Industries (supra) even though there was an RTO report but considering the other facts, the credit was allowed and upheld the order of the Tribunal. 5. I have carefully considered the submissions made by both the sides and perused the records. I find that in the entire investigation the evidences which were brought on records are RTO reports according to which the vehicle number shown in invoices are not capable of transporting the heavy goods like inputs and the two transporters' admission that the goods were not supplied to the appellant. I find that contrary to this evidences the fact that the appellant have recorded the receipt of the goods in their cenvat account i.e. RG-23A, the purchase of the goods under the invoices in question were booked in books of accounts. The payment against the said invoices were made through cheque, even the payment of transporta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consignor etc. considering these facts, the Hon'ble Gujarat High Court itself upheld the order of the Tribunal. It is also observed that these facts are not under dispute that the appellant have recorded the receipt of the goods in RG-23 part -I register and payment of the same was made through cheque. The finished goods were cleared on payment of Central Excise duty. Transportation charges were also paid by account payee cheque and such payment was accounted for in the books of accounts. The clearances of all the goods from the suppliers premises was never disputed. The payment of transportation was made after deduction of TDS. All the suppliers affirmed the sale of goods and receipt of payments for such sale. There is no evidence that the inputs shown in the invoices received by the appellant were not used in the manufacture of final product. Department has not disputed the correctness of quantity manufactured by the appellant recorded in their daily stock account. There is no allegation by the department regarding the financial flow back that against the invoices for which the payments were made through cheque, any cash payment was received by the appellant. The service tax p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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