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TMI Blog2019 (6) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... of these appellant nor any mis-match in the physical stock on the day of search (30 September, 2014) was found. Further, the Revenue have not investigated that if the goods were not received by M/s. Delight Industries, then to where alternatively were they dispatched. Further, the crucial evidence of the truck drivers in question have not been recorded. Further, no goods were found to be removed clandestinely attracting confiscation and accordingly the penalty invoked under Rule 25 on the appellant firm and Rule 26 on the partners is bad and not imposable. The cogent explanation given by the partners of M/s. Delight Industries was not found untrue - the parties in question have maintained proper records and the transaction in question was found recorded in the relevant books of accounts, registers, maintained in ordinary course of business. Appeal allowed - decided in favor of appellant. - E/53580, 53581 & 53582/2018 - FINAL ORDER No. 50786-50788/2019 - Dated:- 20-6-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri N.K. Sharma, Advocate for the Appellant Shri K. Poddar, Authorised Representative for the Respondent ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared that stocks were not tallying. It further alleged that upon inquiry from the partners they tried to explain the reasons, but after sometime they suddenly left the factory. Mr. Ravi Shankar Srivastava, Production In-charge assisted in taking the stock of raw material and stock of finished goods. Thereafter, the officers took inventory of raw material and finished goods in the presence of the panchas. The finished goods stock was found not tallying with RG-1 Register. It was observed that entries in RG-1 were not made for more than a month. Since the goods were not found tallying with the stock register as well as with purchase invoices and there was huge variation, hence the goods were detained for further inquiry. Statement of Production In-charge, Mr. Ravi Shankar Srivastava was recorded under Section 14 of the Act, who inter alia stated that he was Production In-charge of cable only. Further he stated that the officers permitted Smt. Renu Jindal and Shri Deepak to stay in open area as there was some power problem and it was very hot inside the factory premises. Then after sometime both Smt. Renu Jindal and Shri Deepak left the factory premises. Thereafter, the stock ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogus credit of ₹ 35,71,874/- including cess. Further, as per ER-I return filed by M/s. Delight Industries for July 2014, their total opening balance of cenvat was ₹ 3,80,424/- and further after receiving of cenvat on inputs from first and second stage dealer for ₹ 28,16,935/- and from manufacturer cenvat of ₹ 2,77,874/- and cenvat utilised for payment of duty on goods manufactured and cleared at ₹ 34,68,878/-, thus, leaving them with closing balance of ₹ 6,355/- as on 31 July, 2014. Further, in their ER-I return for August 2014, opening balance was ₹ 6,355/-, further credit received from first/second stage dealer ₹ 8,92,400/- and from manufacturer, credit received ₹ 39,32,334/-. They utilised cenvat credit for payment of duty of ₹ 10,83,678/- and for payment of duty on goods removed as such was ₹ 35,31,874/- and they were left with closing balance at the end of August 2014 as ₹ 2,15,537/-. It further appeared to Revenue that some of the vehicle numbers as mentioned in the invoices of M/s. Amar Steel Syndicate were either passenger vehicles or light commercial vehicles, which cannot carry the quantities of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods in question have been subjected to duty at the end of M/s. Bokaro Steel Plant. Thereafter these appellants have supplied the goods to M/s. Delight Industries, Delhi, on the basis of their invoices as the second stage dealer, reflecting therein the movement of goods at the earlier two stages and the fact of duty having already been paid at the initial stage by the manufacturer. The vehicle in which the goods were received by these appellants from M/s. Prompt Enterprises Private Limited, were further used to transport the goods to M/s. Delight Industries without unloading. So far, the allegation of excess loading on transport vehicle is concerned, the same is the normal practice in the trade. Further, M/s. Delight Industries have never denied receipt of goods alongwith invoices at any stage of investigation. It is further urged that the recipient firm partners were present at the time of stock verification but were allowed to leave by the visiting officers, without any questioning. It is unbelievable that partners could have left without consent of the officers. It is wrong to allege that Smt. Renu Jindal and Shri Deepak, the partners of M/s. Delight Industries suddenly le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. However, they did sell the goods as such in next month and reversed proportionate credit for the same, to M/s. Amar Steel Syndicate in the month of August, 2014. Copy of ER-1 Returns for the month of August is enclosed in Appeal paper-book. 11. Statement of various persons have been recorded in the case but no statement of any of the driver of the truck was recorded. The appellant contend that it is the driver(s), who can give first hand evidence of delivery or non delivery of goods. The statement of transporter saying that he only provided bilties is totally wrong and not acceptable. Such transporter not being made a co-noticee for his role in alleged connivance in availment of credit without receipt of goods, clearly points to the accommodation shown to him for uttering lies to help the officers, in building up the case. 12. So far, the statement of the persons of M/s. Prompt Enterprises Private Limited is concerned, to the fact that they do not accept their trucks/ vehicles to be used for further supply, to the fact that these appellant could not have used the trucks of M/s. Prompt Enterprises Private Limited in sending the goods to M/s. Delight Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 (279) E.L.T. 306(T) Punjab Gas Cylinder Ltd. reported in 2015 (322) E.L.T. 747(T) Saraya Sugar Mills Ltd. reported in 2017 (358) E.L.T. 1109(T) Super Trading Company reported in 2014 (299) E.L.T. 75(T) VMA Enterprises Pvt. Ltd. reported in 2016-TIOL-2880-CESTAT-DEL 13. Learned Authorised Representative for Revenue have relied upon the findings of the Court below. Further, reiterated the allegations in the show cause notice that some of the vehicles were not found to be capacitated to carry the stated weight of the goods in the invoices, and further some of the vehicles in question were not transport vehicles. Further he reiterated that the goods in question alleged to be sold and supplied by these appellant were not found in the premises of M/s. Delight Industries on the date of search which was within close vicinity of the alleged supply. Further, from the conduct of M/s. Delight Industries at the time of search and subsequent investigation, it leads to malafide on the part of the parties and indicates to the inevitable conclusion of passing on of bogus cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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