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TMI Blog2022 (2) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... E/50185/2021 7043 dated 6.10.2017 168/2018 dated 31.3.2019 75 & 76/2020 dated 17.9.2020 Rs. 2,33,787/- 2. E/50186/2021 7037 dated 6.10.2017 166/2018- 19 dated 3.03.2019 75 & 76/2020 dated 17.9.2020 Rs. 1,48,466/- 2. The facts in brief are that the appellant is engaged in manufacture of cast iron. The department received an information from the DGCEI Zonal unit about a show cause notice dated 2.3.2016 to have been issued to M/s. Chandra Proleco ltd. (CPL in short) Silvassa, Dadra and Nagar Havelli alleging that the CPL is indulged in availing the CENVAT Credit fraudulently on the strength of Cenvatable invoices against which no goods i.e. Copper ingots were received by them physically in their factory pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. I have heard Shri Hemant Bajaj & Shri Dhruv Tiwari, learned Counsels appearing for the Appellant and Shri Mahesh Bhardwaj, learned Authorised Representative appearing for the Department. 4. It is mentioned by the learned Counsel for the appellant that the appellants M/s. Amtek India Ltd. (now Castex Technolgies Ltd.) have regularly been purchasing Copper ingots/ copper scarp from M/s. Amtek Auto Ltd. There have been hundreds of transactions and accordingly hundreds of invoices were issued for the same. However, only 9 invoices in Appeal No. E/50185/2021 and 7 invoices in E/50186/2021 have been objected by the Department in the present two appeals. It is mentioned that the reason for booking these invoices is their connectivity to M/s. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only has been taken as an evidence against the appellant. But it is mentioned that in the said entire statement there is no admission for not receiving the goods as is otherwise alleged against the appellants. Shri Rajesh Chouhan has deposed about all the documents proving receipt of copper ingots / copper scrap in the appellants factory against the cenvatable invoices. Finally impressing upon that there is no positive evidence or not a single direct evidence against the appellant, the findings in the order of Commissioner (Appeals) are absolutely wrong. Same is accordingly prayed to be set aside and appeal prayed to be disallowed. 6. To rebut the submissions learned Departmental Representative emphasised upon the Panchnama dated 9.4.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly, there is no evidence on record as against the present appellant other than the statement of Shri Rajesh Chouhan, the authorised signatory of the appellant. Irrespective Shri Yogesh Singh, Director of M/s. Sypher Impex Alloys Pvt. Ltd. had repeatedly admitted for having no trading activity in his factory at Bhiwadi since 2013. But there is no evidence procured by the Department about any arrangements by M/s. Sypher Impex Alloys Pvt. Ltd. with the present appellant. Though the appellants have been receiving material through M/s. Amtek India Ltd. which in turn was receiving from Swastik the said Swastik was having invoices of M/s. Sypher Impex Alloys Pvt. Ltd. but this trail is highly insufficient to hold precisely the invoices in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 411 (All.) as also Tribunal's decision in the case of Raipur Forging Pvt. Ltd. Vs. CCE, Raipur-I - 2016 (335) ELT 297 (Tri.-Del.), CCE & ST, Raipur Vs. P.D. Industries Pvt. Ltd. - 2016 (340) ELT 249 (Tri.-Del.) and CCE & ST, Ludhiana Vs. Anand Founders & Engineers - 2016 (331) ELT 340 (P&H). It stand held in all these judgements that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods." It is well settled law that there has to be some concrete evidence which would show clandestine manufacture of goods, as was reiterated by Tribunal, Delhi in the case of Commissioner of Central Excise & Service Tax, Raipur vs. P.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be held as the basis for proof of guilt of some other person. Admittedly no search was conducted in the appellants premises. No record was recovered from the appellants custody, nor any material was seized . The findings against the appellants are accordingly held to be nothing but outcome of assumptions based upon the Panchnama drawn in the factory premises of M/s. Sypher Impex Alloys Pvt. Ltd. 13. In the Final order of M/s. Trishul Metal Industries dated 27.12.2021 based upon the same set of facts and circumstances, it has already been held that merely because the Company issuing invoices was found non-existence, the appellant cannot be denied the availment of CENVAT credit . In the present appeal I do not find any such facts which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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