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TMI Blog2020 (12) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... since no examinationin-chief has been conducted by the learned adjudicating authority, therefore the statements of witnesses are inadmissible in evidence and are eschewed from evidence. Also, the department has not confronted various evidences to the appellant, which further creates doubt about the said half-baked investigation conducted by the department - it is found that the investigation conducted at the end of transporter is not reliable piece of evidence and cannot be used against the appellant. The appellant has taken all reasonable steps as mentioned in Rule 9 of the Cenvat Credit Rules. The appellant has produced duty paid invoices under cover of which goods were received in the factory, showing names of manufacturer and supplier thereon and produced weighment slips evidencing receipt of goods. The payments have been made through the banking channels and the goods received have been duly entered into the RG-23 register - there is no evidence adduced by the department to show any flow back of money in the show cause notice. The department is not disputing the fact that these dealers raised invoices giving all particulars required to be given under the provisions of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs are Pig Iron, Hard Coke and Lime Stone. A search was conducted by the officers of Anti-Evasion Unit at the factory premises of the appellant company on 05.08.2015. It was found that purchases have been made directly or through dealer namely M/s.Hari Om Udyog and M/s.Maa Parwati Engineering Casting against manufacturers invoices of M/s.A.S. Infratel Pvt.Ltd., M/s.Ganesh Udyog, M/s.Ganpati Enterprises and M/s.OHM Metals and Engineering Corporation. Statements of the Manager of the appellant company Shri Krishna Murari Upadhyay, Shri Ashoke Kanti Kar and the Director Shri Shankar Lal Agarwal were recorded on various dates. Thereafter the documents were scrutinized and the department made investigation with respect to transportation of goods at the database VAHAN (hhtps://vahan.nic.in), wherein following details were found:- (a) 8 vehicles with respect to 24 invoices were found non-existent in the database. (b) In respect of 234 consignments of Pig Iron, the owners of 9 vehicles denied transportation by written communications. (c) In respect of 4 vehicles involving 7 invoices, they were found to be Light Goods Vehicle on the VAHAN database. (d) Similarly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods from 9,782 MT of raw materials. It is his submission that this point was categorically placed before the learned Commissioner, however, no findings have been given by him in this regard. It is also submitted that it is not the case of the department that the appellant company had arranged such quantum of inputs from alternate sources and also no evidence have been brought on record to support this assumption. The above facts clearly shows that the appellant has duly received all goods and rightfully taken Cenvat credit on the same, which have been duly manufactured and removed on payment of duty [which has been accepted by the department] or exported, as the case may be. In support of his submissions, the learned Counsel relied upon the decision of the Tribunal in the case of Modern Ex-Serviceman Engg. Co.P.Ltd. vs. CCE, Panchkula [2014 (304) ELT 298 (Tri.-Del.)]. 6. It was submitted that, during the course of visit by the officers of the Central Excise at the premises of the appellant, neither incriminating documents were recovered nor any shortage/excess of raw materials/finished goods were found, which clearly shows that the appellant were duly following the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that, even otherwise, in their statements Sh. Krishna Murari Upadhyay (05.08.2015), Sh. Ashoke Kanti Kar (05.08.2015), Sh. Shankar Lal Agarwal (07.08.2015 13.08.2015), have clearly stated that they have received the goods under the cover of invoices and rightly taken the Cenvat credit. It was further submitted that, the allegations of the department that, Sh. Shankar Lal Agarwal has admitted everything in his statement, is wrong appreciation of the said statement and cannot be relied upon. The learned Advocate further submitted that statements of Sh. Ajay Kumar Sharma, Prop. of Jai Mata Di Enterprises (07.07.2014), Sh. Ajay Kumar Sharma. Prop. of M/s Hari Om Steel (15.07.2014) and Sh. Dharmavir Kumar, Director of M/s A.S. Infratel Pvt. Ltd. (19.09.2014) have been recorded by the officers of DGCEI, Jamshedpur and the statements of these persons have not been recorded by officers investigating the case of the appellant. It is submitted that no cross-examination has been allowed by the learned Commissioner, therefore, cannot be relied upon as evidence in view of the judgment of Hon ble Supreme Court of India in the case of Andaman Timber Industries Vs CCE, Kolkata-II, 2015 (324) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... data may not reach on National Register It was submitted that, when there is even one possibility that, Vehicle details are not digitized by Registering Authority, then it was necessary for the department to investigate via proper channel i.e. by summoning the officers of the RTO with relevant records or taking records from RTO, which has not been done in the present case. The aforesaid evidences cannot be relied upon as evidence. With respect to the other 27 invoices, wherein department found Light Good vehicles, it is submitted that they should have also investigated from the concerned RTO, which has not been done in the present case. 12. It was further submitted that, the allegation of the department with respect to remaining invoices, further letters were issued to remaining transporters as per addresses mentioned in VAHAN database, however the same were retuned as insufficient address . No evidence whatsoever has been relied upon by the department to show whether any letters are sent and moreover, the said allegation of the department proves that the data present on VAHAN website is not reliable and had to be verified from concerned RTO. It was further submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department has not investigated at the end of the broker also, inasmuch they have also not discharged the burden of proof. It is further submitted that the department is duty bound to investigate and bring on record cogent and positive evidence, which is absent in the present case. 16. The appellant placed reliance on the following judgements to support its case:- (i) CCE, Kanpur Vs Juhi Alloys, 2013 (296) ELT 533 (Tri-Del.) (ii) CCE, Kanpur Vs Juhi Alloys, 2014 (302) ELT 487 (All.) (iii) Nidhi Metal Auto Component P. Ltd. Vs CCE, Delhi-IV, 2016 (343) ELT 576 (Tri-Del.) (iv) Ashok Sharma Ors. Vs CCE, Raipur, 2019-TIOL-3405-CESTATDEL (v) CCE Vs Tata Motors Ltd, 2013 (294) ELT 394 (Jhar.) 17. It was further submitted that, merely deposit of money at the time of investigation would not amount to acceptance of any allegations as mentioned in the SCN. It is well settled law that, payment of money at the time of investigation would be treated as a deposit under protest. The appellant would like to place reliance on the following judgements to support its contention:- i. Bayshore Glass Trading Pvt. Ltd. Vs CC, Kolkata, 2002 (148) ELT 1243 (Tri-Kol.) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, the person is not only required to be present in the proceedings before the adjudicating authority but the adjudicating authority is obliged under the law to examine him and form an opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. Therefore, we would say that even mere recording of statement is not enough but it has to be fully conscious application of mind by the adjudicating authority that the statement is required to be admitted in the interest of justice. The rigor of this provision, therefore, could not be done away with by the adjudicating authority, if at all, it was inclined to take into consideration the statement recorded earlier during investigation by the Investigation officers. Indeed, without examination of the person as required under Section 9D and opinion formed as mandated under the law, the statement recorded by the Investigation Officer would not constitute the relevant and admissible evidence/material at all and has to be ignored. We have no hesitation to hold that the adjudicating officer as well as Customs, Excise and Service Tax Appellate Tribunal committed illegality in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that these letters written by the truck owners cannot be relied upon inasmuch these are similarly worded which creates doubt with respect to authenticity of these letters. We further find that the crossexamination of these truck owners have also been denied by the learned Adjudicating Authority. The Hon ble Apex Court in the case of Andaman Timber Industries Vs CCE, Kolkata-II (supra) has held that if cross-examination is not allowed, then the said evidence cannot be relied upon. By following the aforesaid judgement, we find that the said letters cannot be relied upon as evidence. We further find that with respect to certain vehicles which were not found, the said page relied upon by the department clearly shows that one of the possibilities of vehicle not found is, vehicles details not digitized by registering authorities , this clearly shows that the department has not made the investigation properly and they should have enquired from the concerned RTO with respect to vehicles. Similarly, with respect to other infirmities like light goods vehicles or insufficient address, the department should have investigated from the concerned RTO to verify the credentials. We also note th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacture of its finished goods. 26. We find that the appellant have discharged its onus as required under Rule 9 of CCR, 2004 and as explained by the Hon ble High Court of Allahabad in the case of Commissioner of Central Excise and Service Tax Vs Juhi Alloys Limited (supra). 27. It is important to note that the department has neither confronted the statements of dealers nor investigation conducted at the end of the transporters to Shri Shankar Lal Agarwal nor the employees of the appellant, which further weakens the case of the department inasmuch as that they have not put any part of the investigation to the Director and employees of the appellant. 28. The investigation conducted by the department at the end of the transporter by searching the vehicles from the site www.vahan.nic.in is an evidence which cannot be relied upon inasmuch as by the said evidence, the department is fastening the liability against the appellant, especially when the department could have investigated from the concerned State RTO in order to get the details of the truck owners. This exercise has not been done in the present case, thus, the said evidence cannot be relied upon in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the department proves that the data present on VAHAN website is not reliable and had to be verified from concerned RTO. The department is not disputing that these transporters were truck owners. Denial of Cenvat credit mechanically is not sustainable in the eyes of law. 32. The department is alleging the non-existence of premises of manufacturer/dealers, relying solely upon the alert circulars issued by the different Commissionerates. In the present case, the department has neither relied upon nor stated in the SCN about the Panchnama drawn at the concerned premises. If the said evidences have not been relied upon, then there is no material for the appellant to controvert the same, which is in clear violation of the principle of natural justice. It is well settled law that, merely on the basis of alert circulars, it cannot be said that particular premises are non-existent. There is no dispute that, these manufacturer had issued the invoices and paid the Central Excise duty to the exchequer, on which Cenvat credit has been taken by the appellant, thus causing no loss to the exchequer, therefore, the Cenvat credit has been rightly availed by the appellant. When the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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