9911796707
TMI Blog2019 (3) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... s received only on the strength of fabricated transport documents/transactions. It was the case of the investigating authorities that they have verified the details of the vehicles which purportedly transported the imported consignments from Delhi to Hyderabad through sales tax check-post of Commercial Tax Department of Andhra Pradesh and it revealed that none of the vehicles shown in LRs entered the State of Andhra Pradesh, the LRs were not stamped by the check-post authorities; that the goods when imported at JNPJ could have been cleared form JNPJ instead of letting them transfer to ICD Tughlakabad and no manufacturer will incur such expenses. After recording statements of various individuals, a show-cause notice was issued for reversal of ineligible CENVAT credit availed along with interest during the period November- December 2004 and August 2005 and further demand was also made by the authorities in the show-cause notice for clandestine production and removal of copper ingots to three parties i.e. (1) Ecoloite Wire Pvt Ltd (Ecoloite) (ii) Usha Conductors Pvt Ltd (Usha) (iii) Fountain Wire Industries (P) Ltd under the guise of job work by fabricating job work records. The main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goel and Shri Dinesh Karaad have all retracted the statements during the cross-examination which would mean that the reliance placed by the adjudicating authority on the statements of these individuals to allege that the main appellant had availed ineligible CENVT credit and has engaged himself in clandestine manufacture and clearance of finished goods is without any evidence. He would submit that another plank of the adjudicating authority's finding is based upon the enquiry and the information collected from Andhra Pradesh Commercial Tax Department. He would submit that the Commercial Tax Department had informed that the vehicle numbers appearing on the LRs were not recorded at the check-post of the Commercial Tax Department which would mean that the goods did not travel to Andhra Pradesh; it is the submission of the learned counsel that the information supplied by Commercial Tax Department is not reliable as the said department is not recording movement of all the vehicles at the check-post for practical reasons. He would submit that this fact was established when Commercial Tax Department was approached by the appellant to give information with regard to entry of consignments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramesh S. Choudhary in their cross-examination. It is his submission that even if it is assumed that appellants had made up finished goods from some other goods procured by them, then also no evidence has been produced of extra purchases of inputs etc. It is his further submission that the adjudicating authority has overlooked the legal proposition that once in the cross examination, the statements are disowned, no reliance can be placed on such statements unless there is a corroborative evidence. It is his submission that without adducing any corroborative evidence, allegation of clandestine removal cannot be made on the statements is the law settled by the judgement of the Tribunal in the case of Kothari Products Ltd Vs CCE Kanpur [2003 (159)ELT 1187 (Tri-Del)]. CCE Chennai Vs R.V. Steels Pvt Ltd [2002 (243)ELT 316 (Tri-Mad)]. He also relied upon the judgement in the case of CCE Chandigarh Vs Lakshmi Engineering Works [2001(134)ELT 811 (Tr-Del)] upheld by the Hon'ble High Court of Punjab and Haryana as reported at 2010 (254) ELT 205, CCE Kanpur Vs Good Earth Steel Pvt Ltd [2018((9) GSTL 177 (Tri-All)], Gupta Synthetics Vs CCE Ahmedabad [2014(312)ELT 255 (Tri-Ahmd)]. 4. As again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm also stands retracted as during the cross-examination he has stated that statements which were recorded were not voluntary. It is also seen from the records that high-seas sellers whose statements were recorded had also during the cross-examination stated that these statements were not voluntary. We find that no further evidence has been adduced to show that the materials had been disposed of in any other manner other than consumption. Revenue has also not brought on record any independent evidence to show that the goods did not reach the intended destination. In our view, demand of credit reversal seems to be incorrect as we find that the goods which were purchased by the main appellant on high seas basis was paid by them through the banking channels. Main appellant has also paid requisite customs duty as well as CVD as required to be done. So also it is on record that the freight to CHA, transporters have been made through banking channels which is recorded in the books of account of the main appellant. It is also seen from the records that the receipt of the goods as mentioned in the bills of entry with buyers details, are entered in the raw material register and CENVAT cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be sustained. 7. Commissioner (Appeals), upon appreciation of the evidence on record, has concurred with the findings of fact recorded by the adjudicating authority. Commissioner (Appeals) has found that, except the statement dated 10-7-2003 of the Director, Shri Rajnikant Agarwal, there was no evidence to support the charge of clandestine clearance of fabrics. That in absence of any corroborative evidence, the adjudicating authority had rightly dropped the demand. 8. The Tribunal has concurred with the findings of fact recorded by Commissioner (Appeals) and has found no reason to interfere therewith. 9. Thus, all the authorities below viz., the adjudicating authority, Commissioner (Appeals) as well as the Tribunal have concurrently found that except for the statement of the Director of the assessee Company, Shri Rajnikant Agarwal recorded on 10-7-2003, there was no other evidence in support of the charge of clandestine removal of goods. The statement recorded on 10-7-2003 had subsequently been retracted by Shri Rajnikant Agarwal. Thus, it is apparent that the only evidence in respect of clandestine removal against the assessee was in the nature of the statement recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of goods and are that the said vehicles were during the period of time deployed somewhere else. In view of this, we hold that the impugned order recording that appellant is ineligible to avail CENVAT credit of Rs. 39,69,377/- is unsustainable and liable to be set side and we do so. 10. As regards, the payment of duty made against the main appellant on the ground that they have cleared impugned manufactured goods under the guise of goods returned from job work to Fountains Wires, Ecoloite and Usha Conductors, the allegations have been made on the basis that the Directors of these units have stated that they have availed credit without receipt of goods and since these parties have not received materials, they could not have sent the same for job working. In this context, we find that apart from statements of these parties, which stand retracted during cross-examination, no other independent evidences has been adduced by the Revenue. It is not forthcoming from the record as to the said imported goods sent by three parties were not received by the appellant, then which material was received and used by the appellant for job working and there is also absence of evidence of any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
