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TMI Blog2018 (8) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... rification from M/s Aseem Global Ltd., which established that the appellants were giving contrary statement. There is no infirmity in the order of the Commissioner (Appeals) and the same is sustained - appeal dismissed - decided against appellant. - Appeal No. E/60409/2017-EX - A/62529/2018-SM[BR] - Dated:- 22-3-2018 - Mr. Devender Singh, Member (Technical) Present for the Appellant: Shri B.L. Yadav, Consultant Present for the Respondent: Shri G.M. Sharma, AR ORDER PER: DEVENDER SINGH The brief facts of the case are that the appellants are registered with the Department for manufacture of stainless steel ingots, rounds, bright, flats, etc. They were also availing the facility of Cenvat credit on various inputs including Nickel. The Anti- Evasion officers of Central Excise intercepted a truck bearing registration no. HR-38-M-4236 at Bahalgarh Chowk, Sonepat which was found to carry 15275 Kgs of SS Ingots loaded from the factory premises of the appellants without any bill/invoice apart from a weighment gate pass no. 120 dt. 07.03.2013 and a weighment slip bearing no. 5132 dated 07.03.2013 of Balaji Dharamakanta, Bahalagarh. Statement dt. 7.03.2013 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to clandestine removal of SS Ingots as the same has been already confessed by the Director in his statement. On the second issue, he admitted that they had committed the mistake by availing Cenvat credit without receiving the goods and made wrong entries. However, he contended that the goods were received later on and argued on penalty. He submitted that they deposited duty immediately on the day of seizure before issuance of show cause notice. Hence, equivalent penalty was not justified. He also argued that substantial benefit should not be denied on account of procedural lapse when there is no tangible evidence of inputs not received. However, he fairly admitted that the Director s statement about cutting of cathodes at M/s Aseem Global Ltd was not corroborated. He also argued that the goods were not received as the truck had broken down and entries in RG-23A Part-I were made under duress. Contention is that, after the repairs, the driver brought the truck in the factory premises along with goods and the same were used in the manufacture of finished goods. He relied on the following case laws in his support: (i) Mother Dairy vs. CCE, Ahmadabad-III - 2014 (313) ELT 689 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the truck and found that the removal of 15275 kgs of SS Ingots was made without accounting for the same in central excise records and without preparing the central excise invoice/challan/bills, which is against the Rule 11 of the Central Excise Rules, 2002. I also find that weighment slip is not the proper document under Rule 11 ibid. The adjudicating authority has given a finding that Sh. Vijay Kumar of M/s NGI, Mohan Nagar categorically stated that they were doing job work and such goods were received on job work challans only. Evidently, the said ingots were being cleared clandestinely to evade duty. As the appellant are not contesting this demand, the same is upheld along with interest and penalty. 6. On the second issue, I find that 15534 Kgs of Nickel Cathodes uncut shown in RG-23A Part-I was not found physically in the factory premises of the appellants whereas the appellants had taken credit for the same on 6.3.2013 on the basis of transporter copy. Sh. Ram Avatar Garg in his statement dt. 7.3.2013 stated that the goods were not received physically in their factory because it was uncut and it comes to their factory after cutting. However, in his statement dt. 5.6.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebited the inadmissible Cenvat credit of ₹ 27,55,868/- through challans. Therefore, the statements given by Sh. Ram Avatar Garg, Director of the assessee are a valid piece of evidence as the same are also in consonance with the physical verification of the goods lying in the factory premises and subsequent pleas taken in their written submission and at the time of personal hearing are self contradictory. They are only after-thought to mislead the Department and claim the undue benefit. They are trying to justify their misdemeanour to escape rigors of law, thus no credence can be placed on such purposed pleas. 7. In view of above mentioned clear contradictions, the arguments advanced by the Ld. Consultant do not carry much force, especially, when there is no proof of receipt of goods at any time. The plea that substantial benefit should not be denied for procedural lapse is clearly not tenable as there is fraudulent availment of Cenvat credit without supply of goods and it is not merely a procedural lapse. 8. From the decisions relied on by the appellant, I find that in the case of Mother Dairy (supra), the Cenvat credit was availed prior to receipt of the goods in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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