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TMI Blog2022 (2) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the ground taken by the Revenue on this aspect is on assumption and presumption. Whether statements of transporters are not found to be reliable regarding unloading of the goods? - HELD THAT:- The Adjudicating Authority perused the statements/ explanation of the local transporters of Delhi revealed that they have not indicated any specific place or premises where the goods were unloaded by them except vaguely specifying the areas. The Adjudicating Authority also observed that it would be the drivers of the local transporters who would know the exact place of unloading of these consignments as held in the various decisions on the subject. The Adjudicating Authority also relied upon various decisions in this regard. In the absence of clear statement of the transporters that goods were not unloaded to the respondent s destination only the vague statements cannot be used as conclusive evidence. There are no infirmity in these findings of the Adjudicating Authority inasmuch as the Adjudicating Authority has not found the statements of the transporters to be reliable. There is no investigation and no evidence to establish alleged clandestine disposal of disputed inputs in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or around Delhi and not transported to Daman to the Respondent. Therefore, the Adjudicating Authority has rightly dropped the proceeding of the show cause notice - Appeal dismissed - decided against Revenue. - EXCISE Appeal No. 12574 of 2019-DB - A/10092/2022 - Dated:- 11-2-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri G. Kirupanandan, Supdt (AR), for the Appellant-Revenue Shri Willingdon Christian, Advocate for the Respondent ORDER The brief facts of the case are that the appellant are engaged in the manufacture of copper wires by the process of drawing of continuous cast/rolled copper wire rods. The copper wire rods were either imported/ procured from the manufacturers thereof or got manufactured by M/s. Taha Wires Pvt. Limited on job work basis from raw materials through different job workers. An intelligence collected by the DGCEI, Vadodara indicated that Taha Wires Pvt. Limited using non-duty paid scrap for the manufacture of their final products. However, they were wrongly availing Cenvat credit on the strength of duty paid invoices of different inputs without actual receipt of the inputs against such documents. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons. The above show cause notice was adjudicated by the Commissioner of Central Excise Customs, Vapi vide order-in-original No. 10/MP/Daman/2011 dated 20.04.2011 whereby demands raised in the show cause notice were confirmed for recovery along with applicable interest and also imposed penalty on the noticees. 3. Aggrieved by the above order-in-original, appeals were filed by Taha Wires Pvt. Limited and other co-noticees before this Tribunal mainly on the ground of cross-examination of the witness which was not allowed by the Adjudicating Authority. This Tribunal vide order No. A/10150-10154/2019 dated 08.01.2019 decided the appeals filed by the said noticees and set-aside the said order-in-original and remanded back the case for de-novo adjudication with directions that appellant shall be given sufficient opportunity of personal hearing and making their submission after allowing the cross-examination of the witness. Consequent upon this Tribunal s order dated 08.01.2019, fresh adjudication proceedings on remand, after going through the show cause notice dated 03.10.2007, the directions given by this Tribunal vide order dated 08.01.2019, the Adjudicating Authority passed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority has wrongly held that statements of transporters are not found to be reliable regarding unloading of the goods, we find that the Adjudicating Authority perused the statements/ explanation of the local transporters of Delhi revealed that they have not indicated any specific place or premises where the goods were unloaded by them except vaguely specifying the areas. The Adjudicating Authority also observed that it would be the drivers of the local transporters who would know the exact place of unloading of these consignments as held in the various decisions on the subject. The Adjudicating Authority also relied upon various decisions in this regard. We find that in absence of clear statement of the transporters that goods were not unloaded to the respondent s destination only the vague statements cannot be used as conclusive evidence. We do not find any infirmity in these findings of the Adjudicating Authority inasmuch as the Adjudicating Authority has not found the statements of the transporters to be reliable. 10. We find that the Adjudicating Authority has given elaborate finding considering undisputed fact of recording of statements of Shri Rajesh Sharma and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have relied upon the statement of Shri Keshav Singh Tomar. In this regard, it is the statement of respondent that except for relying on the third party statement like Commercial Check post, RTO authorities, there was no investigation nor any evidence was produced to substantiate that clandestine disposal of disputed items and substituted by locally purchased. We find that except of third party record, there is no positive evidence from the respondent to establish that goods were diverted in or around Delhi. Therefore, merely on reliance on third party evidence, the case against respondent cannot be established. 13. The Revenue objected the findings of the Adjudicating Authority given in Para 30.4.3.4(b)(iii) which is reproduced below:- The statement of the persons of M/S Singhal Road Carriers and the documents recovered from Ahmedabad Office cannot be accepted to prove non transportation of the goods from Delhi as they have retracted the statements in the cross examination and the delivery register at Ahmedabad office is for Railway Receipts and not related for door delivery and for delivery in and around Ahmedabad and not for Surat/ Daman, the destination in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment s case about substitution of the disputed inputs by scrap procured from market, there is not even a semblance of evidence showing details as to any single supplier of the alleged substituted scrap or about transportation thereof or any financial transaction with the alleged supplier of the alleged substituted scrap. This shows that department s two pronged alleged case of clandestine disposal of disputed inputs and its substitution by procurement of scrap has no legs to stand on. 17. As regards the positive documentary evidence from CHAs, the CHAs have admitted that they had cleared the goods from the Customs, ICD Tughlakabad and arranged loading the disputed inputs in trucks of different transporters for dispatch to Surat/Daman. This fact cannot be brushed aside. Full value of the disputed inputs has been paid by cheque. Similarly full payments have been made to the concerned CHAs, transporters etc. The respondent have also paid service tax on GTA paid to the transporters for transporting the goods. The disputed inputs were delivered directly to the job workers for conversion of Copper Ingots/Bars/Scraps into wire rods, as the respondent did not have the facility of furnac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance is as under in their appeal:- (a) Various Road Transport Authorities to ascertain the names of the owners, nature of vehicles load carrying capacity etc. in respect of purported transportation of inputs to the factory of M/s Taha Wires Pvt. Limited. (b) Custom House Agents, who cleared and transported imported consignments from ICD, Tughlaquabad to Shahadra/UP border. (c) The owner/operator of the vehicles shown to have used for transportation of imported consignments from Delhi to M/s Taha Wires Pvt. Limited, Daman. (d) Transporters who had shown to have affected the transportation of goods from Delhi to M/s Taha Wires Pvt. Limited, Daman. (e) The Director of M/s Taha Wires Pvt. Limited, Shri Kamilbhai Zanubhai Vashi. 21. We find that there were in fact more than 12 transporters but the investigating officers have felt complacent by recording statements of only two transporters, namely M/s. Time Space Haulers and M/s. Singal Road Carrier. Therefore the enquiry conducted with these two transporters who have transported only 10 consignments out of 124 consignments, that too the investigation is not conclusive against these transporters. It cannot be conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products, which are cleared on payment of duty. Consequently, the denial of credit on the sole ground that the vehicles numbers were not found to be genuine cannot be made the basis for arriving at a conclusive finding against the respondent. The consideration for the disputed inputs was paid through cheques and freight payments were made through cheques or vouchers is the evidence in favour of the respondent. 23. The most important part is that there is absolutely no evidence brought on record to show as to how the huge quantity of the disputed inputs has been disposed off clandestinely and how and from which source the alleged substituted inputs were procured. This aspect of absence of evidence should suffice to cut the roots of the allegation, as there are ample and sufficient records and documentary evidence to prove that there was no shortage of the disputed inputs. The finished goods were manufactured and cleared on payment of duty and that there is not a single piece of evidence to prove source and manner of procurement of any substituted inputs. 24. We find that the case of the department is built up mainly on recorded statements of a few transporters of the disputed inp ..... 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