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TMI Blog2018 (8) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... iod can always be used in the subsequent periods. The credit is available to the assessee at the time of receipt of the said raw material and there is no requirement of its use, for earning the credit. The appellants have taken a categorical stand before the authorities below, which does not stand disputed by the revenue that the payments were by the appellants through the bank channels i.e. ride cheques, which establishes that the Duplex Paper Board was actually purchased by the appellants. There is neither any allegation nor any evidence of flow back of money from the raw material seller to the appellants. The consideration of the raw material having been made by way of cheques and there being no evidence to support the revenue’s alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Nos. 71949-71950 / 2018 - Dated:- 10-8-2018 - Hon ble Smt. Archana Wadhwa, Member ( Judicial ) And Hon ble Mr. Anil G. Shakkarwar, Member ( Technical ) Shri Sharad Chandra Tiwari, Consultant for Appellant Shri Rajeev Ranjan, Additional Commissioner (AR), for Respondent ORDER Per: Archana Wadhwa As per facts on record, the appellant is engaged in the manufacture of Corrugated Boxes, Cartons other articles of Paper Paper Board etc. falling under Chapter 48 of the first schedule to the Central Excise Tariff Act, 1985 and were availing the benefit of Cenvat credit of the duty paid on the inputs i.e. Semi Kraft Paper, Virgin Kraft Duplex Paper/Board. 2. There factory was visited by Anti-Evasion of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispatch advices. Whereas invoices were being prepared in respect of dispatch marked with code A , no invoices were being issued in respect of B code, in some of the cases. As such a view was entertained that the code no. B marked on the dispatch advice was cleared by the appellants without payment of duty to the extent of around ₹ 4 lakhs. Further, clandestine removal of the final product was alleged involving duty to the extent of around ₹ 65,534/- based upon the parallel invoices recovered during the course of the search of the factory, for the period from April, 2005 to September, 2007 and evasion of duty to the extent of ₹ 2,832/- was alleged on the mis-declaration of the goods in the invoices. 5. In the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent periods. The credit is available to the assessee at the time of receipt of the said raw material and there is no requirement of its use, for earning the credit. Further, the revenue has relied upon the statements of various persons recorded during investigation. Even though we find that the said statements are strictly not confessional statements but the fact remains that the statements by themselves cannot be held to be sufficient evidence to uphold the allegations without putting the deponents of the said statements to examination-in-chief or to cross examination. And as such, the said statements are to be kept out of consideration, as held by Hon ble Punjab Haryana High Court in the case of M/s Jindal Drugs Pvt. Ltd. Vs Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them by reflecting the same in their Cenvat records which were also being produced by them before their jurisdictional Central Excise Officers, without any objection. 7. At this stage, we may take note of some of the Tribunal s decision dealing with on identical issue Tribunal in the case of Manoranjan Singh Duggal Vs Commissioner of Central Excise, Faridabad Delhi 2015 (325) ELT 892 (Tri.-Del.) has held that credit cannot be denied on the ground that the same was availed only on the basis of the invoices without supply of the goods in the absence of any finding of documents evidence when the payments stand made through banking channels and no investigation stands conducted with the raw material supplier. In the present case also we not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s Air Carrying Pvt. Ltd. Vs Commissioner reported at 2008 (229) ELT 80 (Tribunal), has set aside the penalty and has held that in the absence of any proposal for confiscation, penalty under Rule, 26 cannot be imposed. Otherwise also we note that there is no evidence on record indicating any malafide on the part of Director, showing his association with any illegal activity. In any case, we have set aside the major part of the demand and have remanded the balance portion, we find no justifiable reason to impose penalty on the said appellant. Accordingly, penalty of ₹ 3 lakhs imposed on Shri Upendra Goenka is set aside and the appeal is allowed to that extent. 11. Both the appeals are disposed of in above manner. ( Pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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