9911796707
TMI Blog2019 (4) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... h Forging Company involving Central Excise duty of Rs. 24,57,861/-, which was taken as credit by the respondent assessee. Show-cause notice was issued alleging that the respondent has taken credit by producing fraudulent paper transactions without physically receiving the corresponding goods. The Adjudicating authority confirmed the demand along with interest and imposed equal amount of penalty each on the appellant company and its Director, Shri Sekhar Agarwal and also on M/s Shree Ganesh Forging Company. Both the respondents herein filed the appeals before the lower appellate authority and the ld. Commissioner (Appeals) allowed their appeals. Being aggrieved, Revenue has filed these appeals against the impugned order. Respondent as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the assessee had accounted for the quantum of raw materials for finished goods in their stock if the impugned goods/inputs had not been received by them during the material period, as alleged by the Department. In the absence of any credible corroborative evidence, the allegation of non-receipt of inputs/goods by the assessee is not maintainable. I also observe that it is not in dispute that the goods on which the assessee had to avail cenvat credit had not suffered duty, when the same were cleared by M/s Shree Ganesh Forging Company. As such, credit cannot be denied merely on the ground of suspicion being not bagged by credible corroborative evidence. I find that the Tribunal in the case of Dhakad Metal Corporation (supra) has held as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was not extended. It is now well settled law that cross-examination of the persons whose witness are relied upon by the Revenue should be extended to the appellant and in the absence of such cross examination extended, the statements of such persons cannot be relied upon as evidence. It is also observed that Revenue has not contested with any documentary evidence to show that M/s. Dhakad Metal had knowledge that the inputs received alongwith invoices, at the time of taking credit, was from M/s. Prasun Ferro Alloys & Metal Casting Pvt. Limited who had no facility for manufacturing such inputs. In the above factual matrix, appellant M/s. Dhakad Metal Corporation cannot be held to have any mala fide intention to take wrong credit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbiased manner the appellant could not have noted that each of the delivery challans produced by the appellants also bears the corresponding Central Excise Invoice no., which is a cenvatable/modvatable duty paying document and would surely have all particulars. (f) The respondent has not considered any of the bona fide facts that the stock of inputs and finished goods of the appellants was perfectly tallying with the statutory records as recorded in the Department's own panchnama dated 1-9-1999 during the surprise visit, the availability of material issue slips showing the issue for production and that cheque payments had been made for each of the consignments, while unshaken reliance is being placed on the transporters-statements, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants relied on the case of Gurpreet Rubber Industries v. CCE reported in 1996 (82) E.L.T. 347 where in it has been held "Demand cannot be sustained only on basis of a private diary without considering production capacity, raw material purchased, labour employed, power consumed, etc. At the most it may raise a doubt but that cannot take place of proof. There is a long distance between 'may be true' and 'must be true' and the whole distance must be covered by legally reliable and un-matchable evidence." In another decision reported in Kashmir Vanaspati (P) Ltd. v. CCE - 1989 (39) E.L.T. 655 (CEGAT) it has been held that the "Demand based on note book maintained by labourers containing unauthenticated entries cannot be sustained, unless the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
