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TMI Blog2019 (3) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... the guise of job work The statement received from the Commercial Tax Department as to number of vehicles entering into A.P. needs to be taken with pinch of salt and it cannot be held to be a conclusive evidence of non-transportation of goods. Revenue authorities have also not brought any evidence to show that the vehicles mentioned in the LRs are not vehicles for transportation of goods and are that the said vehicles were during the period of time deployed somewhere else. In view of this, the impugned order recording that appellant is ineligible to avail CENVAT credit of 39,69,377/- is unsustainable. Revenue has not proved beyond doubt their case of non-transportation of materials from these three parties to main appellant for doing job work on the goods. The only argument adopted by the learned A.R., is that these three persons have discharged the duty liability on being pointed out to them that they have availed CENVAT credit without receipt of the inputs. It is stated that these three parties have in order to end litigation and also the amounts involved were very miniscule settled the matter by paying the disputed amount. Accordingly, the demands confirmed against the main appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess of law, confirmed the demands raised on the main appellant along with interest, imposed equivalent amount of penalty and also imposed penalty on second appellant, the individual. Against this order, both the appellants have preferred appeals. 3. Learned counsel appearing for the appellants submit that demands are solely based on third party statements and purportedly the report of the commercial tax check post. It is his submission that during the adjudicating proceedings, cross-examination of transporter Shri Satish Agarwal was conducted wherein he has stated that his statements were forcibly recorded. Further the excise clerk of the main appellant has also retracted his statement in cross-examination; Principals who had sent goods for job work Shri Sharad Kela Managing Director of M/s Fountain Wire Industries, Shri Naresh Mittal Director of Usha Conductors Pvt Ltd have also retracted the statements in the cross-examination. He would submit that the main appellant has pleaded that reliance based upon investigation conducted by Commercial Tax Department, notified that the consignment was not received by the appellant was incorrect as the check-post of Commercial Tax Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were physically received, only 40 consignments were recorded by the Commercial Tax Department. Further, he submits that all the consignments LRs are not stamped by the Commercial Tax Department. Hence reliance placed by the Revenue on the said information of Commercial Tax Department is incorrect and unsustainable. He would submit that the adjudicating authority has erred in coming to a conclusion that since at random 25 consignments checked whether the said consignments were recorded with the Commercial Tax Department, none of them were found to be registered does not suomoto become that all the goods covered in various LRs were not received at the factory. It is his further submission that as regards demand of the duty confirmed on the ground that clearances of fresh material so cleared as being of job work for M/s Ecoloite Wire Pvt Ltd, Usha Conductors Pvt Ltd and Fountain Wire Industries (P) Ltd., the reliance was mainly placed on the statement of the contractors of the said entities and Shri Dayakishn Goel. It is his submission that all the statements were tutored ones and once M/s Dinesh International has sold the goods on high-seas sales basis, the goods were cleared by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to how he has come to a conclusion that the goods which were cleared from ICD Tughlakabad never reached the appellant as the reliance placed on various vehicle Nos Mentioned indicate that these vehicles never entered the check-posts nor recorded as to the contents of this vehicles. He would submit that entire CENVAT credit availed by the Usha conductors Pvt Ltd., Ecoloite Wire Pvt Ltd., Fountain Wire Industries Ltd had clearly stated that they had not sent any consignment of copper ingots to appellant for doing job work which in itself is enought to hold that the allegations made in the show-cause notice are correct and appellant is required to pay duty. 5. Heard both sides and perused the records. 6. On perusal of records, following two issues arise for consideration (1) whether main appellant herein has correctly availed CENVAT credit or otherwise and whether the allegations of the Revenue that main appellant has availed CENVAT credit without receipt of the material is correct or otherwise and (b) whether main appellant is required to discharge central excise duty on the allegation of clandestine manufacture and clearance of the goods or otherwise. 7. It is seen from the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso not disputed by the lower authorities and the returns which are filed by the main appellant to the authorities indicated receipt of such material. There is no allegation as well as any evidence to indicate that the goods have been diverted by the appellant to another party or collection of any amount as payable towards such diversion. Nor there is any allegation in the show-cause notice as to there being buyers of diverted imported goods. It is to be noted that though the factory premises of the main appellant was visited by the officers, no physical verification of the finished goods/in process material or raw material was undertaken, which could have been a pointer if there is any discrepancy in stock, though it may not lead to inference that appellant did not receive the goods in the factory or has cleared their own manufactured goods under the guise of job work. In the case of CCE Vs Omkar Textile Mills Pvt Ltd [2010(259) ELT 687 (guj)], the Hon'ble High Court of Gujarat held as under:- "6. The adjudicating authority, upon appreciation of evidence on record, found that upon going through the panchnama (Annexure "B"), it appeared that the assessee had cleared the disputed l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence to establish that the charge of clandestine removal is not made out and that there was no shortage of material as recorded in the panchnama which was accepted by the adjudicating authority. The findings of the adjudicating authority stand confirmed by both the appellate authorities. Learned counsel for the appellant is not in a position to point out any evidence to the contrary, in support of the case of the revenue as regards shortage of material or clandestine removal of goods. Thus, the conclusion arrived at by the Tribunal is based solely upon concurrent findings of fact recorded by all the authorities below. In absence of any perversity being pointed out in the findings recorded by the Tribunal, it is not possible to state that the conclusion arrived at by the Tribunal is, in any manner unreasonable so as to warrant interference. A case of clandestine removal of goods has to be made out on facts which find corroboration from the material on record. In absence of any corroborative material, no demand could have been raised merely on the basis of a statement recorded under Section 14 of the Act, which had been subsequently retracted." 9. We also find that there is no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the material from these three people for job working purposes. In our view, the statement of the transporters and high-seas sellers have been held as unsustainable for the reasons mentioned hereinabove. It is seen from the records that the job work challans were also sent by these three parties. The authenticity of these challans has not been disputed. We find that Revenue has not proved beyond doubt their case of non-transportation of materials from these three parties to main appellant for doing job work on the goods. The only argument adopted by the learned A.R., is that these three persons have discharged the duty liability on being pointed out to them that they have availed CENVAT credit without receipt of the inputs. It is stated that these three parties have in order to end litigation and also the amounts involved were very miniscule settled the matter by paying the disputed amount. Accordingly we hold that the demands confirmed against the main appellant on this ground also are unsustainable. 11. Since we have set aside the demands on merits, the question of interest, penalties on the main appellant and also on the other individuals does not arise. The appeals of all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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