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TMI Blog2019 (2) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the revenue during course of investigation and rendered finding categorical finding in respect of them and the receipt of the goods covered by the said invoice by the respondent, we are without expressing any opinion on the evidences and submissions made by the appellants remand the matter back to Commissioner for reconsideration of entire issue afresh - Appeal allowed by way of remand. - APPEAL No. E/1974/2010, E/CO/25/2011 - A/88304/2018 - Dated:- 12-11-2018 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri N.N. Prabhudesai, Superintendent (AR), for appellant Shri Anil Mishra, Advocate, for respondent ORDER Per: Sanjiv Srivastava This appeal has been filed by the revenue against the order dated 29.07.2010 of Commissioner Central Excise Mumbai V. By the said order Commissioner has held as follows: The demand of CENVAT credit of ₹ 70,22,939/- raised vide Show Cause Notice No V. Adj (Ch 74) 15-73/ M- 05/2009 dated 03.06.2009 against M/s Shri Hari Extrusion Limited is hereby dropped. 2.1 The respondents in the present case have been issued the show cause alleging that they have taken credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements; e. even non CENVAT able raw material was entered in their RG23A part-I register; f. they do not have any permission from the department to store the raw material against which CENVAT Credit has been taken in godown outside the factory; g. no delivery challan or any other document for movement of part consignments was made; h. though the raw material in respect of the twelve invoices of HCL was received in piecemeal, the entries have been made for the entire invoiced quantity; i. no piecemeal entries were made in RG23A part-I register which do not reflect the actual date of receipts of invoiced raw materials; iv. Shri Nirmal Kumar Sharma, Accountant with respondents stated that the procured raw material was first unloaded at Bhiwandi godown and subsequently transported to the factory in the vehicles of M/s Gangar Transport. v. Shri Pradeep Gangar, Transport Operator stated that they - a. did not prepare any documents; b. transported copper brass products from their Bhiwandi godown to Kandivali factory and also their finished goods namely brass rods from the Kandivali factory to Gulalwadi; c. a person of the respondents accompanied the vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many in-consistency in the said octroi receipt and Form-B, and Commissioner has without examining the said inconsistencies, held that sufficient evidence for transport of the goods covered by the 12 invoices has been produced. c. Commissioner has fully discarded the statements of the drivers of vehicle transporting the goods, stating that the goods covered by the said invoices were transported elsewhere than the address mentioned on the invoice. d. Respondents had submitted transported documents of M/s G J Carriers in respect of invoice No 1688/21.2.08, 1700/22.2.08, 1747/28.2.08 1753/29.2.08. These documents were denied by the Manager of the said transport company as not belonging/ issued by them. e. The dispositions made by the drivers to effect that the goods were transported elsewhere is supported evidence/ document produced BMC Octroi Naka which showed that no such material in the vehicle of M/s Gangar Transport were transported from Bhiwandi to Respondents factory in Kandivali. f. Commissioner erroneously has held that presumptive satisfaction required under Rule 8 9 of CENVAT Credit Rules, 2004 relate only to the satisfaction of nexus theory in Rule 3 4 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to show that the goods claimed to be received by the appellants were never received by them. However adjudicating authority instead of appreciating the evidences in proper perspective discarded them and allowed the credit. iv. The respondents plea that they were storing the goods first in godown at Bhiwandi and then transporting the goods to their factory at Kandivali is not tenable as the respondents were not having any permission from the jurisdictional Assistant/ Deputy Commissioner to store the goods outside the factory premises as required under rule 8. v. It is settled law that procedural condition can be mandatory and directory also. Thus not following the proper procedure cannot be condoned for allowing inadmissible credit. In this case procedure has not been followed and credit claimed in respect of inadmissible goods even without the receipt of goods. vi. Commissioner has failed to appreciate the evidences in proper perspective and dropped the demand, in respect of CENVAT Credit availed by the respondents in respect of the goods not received by them. vii. Since Commissioner has not appreciated the evidences recorded during the investigation, the order of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and appellants have claimed the credit in respect of the duty paid against each invoice. The goods covered by all the invoices were transported by New Haryana Transport. Table 1: details of Invoices in respect of which credit is sought to be denied. Invoice Truck No Transport Doc Weight MT RG 23A part 1 Credit Taken No Date No Date Entry No Date 1687 21.2.08 RJ132G1839 1295 21.2.08 16.32 293 27.2.08 623515 1688 21.2.08 RJ142G5235 1296 21.2.08 21.74 289 26.2.08 830589 1700 21.2.08 RJ142G3632 1297 21.2.08 17.48 301 1.3.08 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the destination was Bhiwandi an d in remaining four cases the transporter had given instructions on the consignment notes to the effect As per party s instruction material will be unloaded at G J Carriers Delhi UP Border Ghaziabad. 5.5 Statements of the driver of the truck No RJ142G3632 (Shri Sahiram s/o Shri Bhataram), RJ 142G5235 9Sri Radheyshyam s/o Shri Sardararam), RJ18GA1829 (Shri Krishna Kumar s/s Shri Hari Singh), RJ 18G 3555 (Shri Sandeep s/o Shri Harinarayan) and RJ 18GA0956 (Shri Mahavir s/o Shri Ramchandra) were recorded. All five of them stated that the goods were delivered at places other than the consignee premises mentioned on the invoices. 5.6 The goods in respect of the other invoices were delivered at Bhiwandi godown and from there they were said to be transported to factory premises of respondent in piecemeal. But no separate document for such transportation was made. The goods were transported from Bhiwandi to Kandivali by Gangar Transport. The statement of Shri Pradeep Nanjee Gangar, Transport operator was recorded and he deposed as stated in 3.1 (v). 5.7 On the basis of information provided by Shri Gangar in respect of the Trucks, used for transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t actual receipt of the goods by them show cause notice was issued to them for denying the credit taken by them. Commissioner adjudicated the case and dropped the demand. 5.12 The basic reason for dropping the demand being that Commissioner found on the basis of two octroi documents submitted by the respondents to evidence movement of 5.1 MT of liberator cathode purchased from HCL under invoice N 1753/ 29.02.2008 from Bhiwandi to Kandivali. On the basis of this he negated all the evidences adduced by the revenue to show that the goods have not moved to the premises of the respondents in Kandivali. The approach of Commissioner appears to be erroneous evidence in respect of movement of each consignments and its receipt in the factory premises was needed to be examined and specific finding recorded. In absence such finding the order of Commissioner fails the test of reasonability and needs to be set aside on this ground only and matter remanded back to him for consideration of the evidences put forth in the show cause notice for alleging that the goods have not been received by the respondents in their factory premises. 5.13 Commissioner has sought to bring in the concept of al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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