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TMI Blog2022 (6) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in their factory. Contrary to these evidences the fact that the appellant have recorded the receipt of the goods in their cenvat account, the purchase of the goods under the invoices in question were booked in books of account and raw material receipt account, the said purchased goods also shown for use in manufacturing of dutiable finished goods. Merely on the basis of the transporter records and RTO check-post reports, it cannot be concluded that the inputs were not received by the appellant. In the absence of any evidence to the contrary, we find that the denial of Cenvat credit on the basis of the investigations conducted at the third party end cannot be adopted as the sole basis for denial of credit. The allegation of the Revenue that the appellant have not received the inputs made against the appellant are not sustainable and thus, the impugned orders are liable to be set aside - Appeal allowed - decided in favor of appellant. - Excise Appeal No. 478 of 2011, 10549 of 2013 and 10654 of 2013 - A/10706-10708/2022 - Dated:- 20-6-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri P.V. Sheth, Advocate for the Appellant Shri. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that they issued only LRs and did not transport copper. Statement of Shivkumar, Director of Appellant was also recorded wherein he has not disputed that the goods under the relevant input invoices were received in the factory. On the basis of these facts and evidence gathered, it was alleged that the appellant had availed the credit fraudulently without receipt of inputs. Accordingly, the SCN was issued which was culminated in the adjudication order whereby the demand of Cenvat credit along with interest and penalty was confirmed and a penalty under Rule 26 of Central Excise Rules, 2002 was also imposed on the Co-Noticees. Hence, appellants filed these appeals before the Tribunal. 2. In respect of Appeal No. E/478/2011-DB the brief facts of the case are that during the investigation officers of DGCEI directed the appellant to debit the amount of Rs. 24,00,000/- in Cenvat account which was debited by the Appellant on 06.01.2007. Thereafter, Appellant was served with the show cause notice proposing recovery of Cenvat Credit for the period 11.09.2004 to 17.11.2006. The said show cause notice was adjudicated by the Commissioner under his Order-In-Original No. 69/Commissioner /2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke little longer route and delivers the consignment. This is the choice of the transporter and because they found it economical, to avoid the RTO check post, then to pay the penalty they transport the consignment in the manner they deemed fit. Therefore, the investigation conducted by the department on the basis of such document only, no credit can be denied and the proceeding cannot be sustained. It is also well settled proposition of law that clandestine removal cannot be proved merely on the basis of the documents of transporter and without any independent corroborative evidence. 3.2 He also submits that the allegation contained are not liable to be sustained, in as much as, the department has not properly appreciated the relevant documents and the facts that none of supplier s statement was recorded nor the appellant has ever denied the receipt of the material. The appellant received goods in valid duty paid documents and made payment through account payee cheques. Quantities of inputs were properly recorded in raw material Register. The finished goods were cleared on payment of Central Excise duty; 3.3. He placed reliance on the following decisions:- Grace Castings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of the goods. However revenue did not find any shortage/excess of inputs or finished goods in factory of Appellant. Officers also seized records/ documents related to the receipt of the goods and availment of cenvat credit. The Revenue could not bring any evidence from the Appellant s factory by which it can be shown that the goods covered under the invoices were not received by them. We find that in the entire investigation the evidences which were relied upon are related to transporters/ RTO check post. On the basis of such third party evidences revenue alleged that goods were not received by the appellant in their factory. Contrary to these evidences the fact that the appellant have recorded the receipt of the goods in their cenvat account, the purchase of the goods under the invoices in question were booked in books of account and raw material receipt account, the said purchased goods also shown for use in manufacturing of dutiable finished goods. The payment against the said invoices were made through cheque, even the payment of transportation was also made by cheque. When the statutory records maintained by them do not disclose absence of receipt of inputs in the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit without receipt of goods (raw material) is not tenable. Further, as the Appellant have discharged the Central Excise duty on the final product manufactured out of the alleged raw material, if the department is of the opinion that the alleged goods was not received by the appellant then it is the onus on the department to prove that any other alternative raw material was used in the final products, Department has failed to do so. 6.2 We also observe that Tribunal in case of M/s. Lloyds Metal Engg. Co. v. CCE, Mumbai, 2004 (175) E.L.T. 132 (Tri.-Mumbai) has held that burden to prove non-receipt of the inputs is required to be discharged by Revenue by sufficient evidence. Where disputed consignments are entered in RG-23A Part I and Part II in chronological order, the allegations of non-receipt of the inputs cannot be upheld. Similarly in the matter of Commissioner Vs. Motabhai Iron and Steel Industries 2015(316) ELT 374 (Guj.) the Hon ble Gujarat high court held as under 19 . From the findings recorded by the Tribunal, it is apparent that payment to M/s. Vasmin Corporation in respect of purchases was made through banking channels. Under the circumstances, the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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