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TMI Blog2024 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... in order to make the demand. This is serious a flaw in the investigation process. Without doubt this action of the Revenue clearly vitiates the proceedings in respect of these 178 Invoices. Hence, there are no legal provision for confirmation of the demand of Rs.1,00,55,148 - appeal allowed. Demand confirmed in respect of 32 Invoices, wherein statements have been recorded from the owners of the Vehicles - HELD THAT:- When the statement itself is recorded after about 1 to 5 years of the transaction, how far their statement can be relied on is doubtful. It is also on record that the appellant has sought cross-examination of many of the persons, which has not been granted by the Adjudicating authority for which he has come out with some justification. But Section 9D requires the recorded statement before the investigation officer to be once again reiterated before the Adjudicating authority for having been given without any coercion or force, before the same can be admitted as evidence. This has not bee done in this case. Normally in such cases, the matter remanded to the Adjudicating authority to produce these persons for Cross-examination - in the present case, the Statement itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating authority confirmed the demand on the company and imposed penalty on the Director Sri Radhe Shyam Agarwal. Being aggrieved, the appellantsare before the Tribunal. 2. The learned Advocate appearing on behalf of the appellant submits that the entire proceedings have been taken up without any proper verification and investigation and hence the demand itself is on assumptions and presumptions basis. The entire investigation has emanated on the ground that the vendor was having the manufacturing facility of longer length of MS Round and Angles, and hence he could not have supplied the cut pieces of smaller length to the appellant. The investigation is on a single point by summoning and recording the statement of the owners of the truck numbers given in the Invoices. The Dept did not even attempt to gather any further corroborative evidence. He submits that during the period under consideration, the appellants have procured the raw materials / inputs [cut pieces / smaller pieces] under 245 Invoices from the Vendor. Out of these 245 Invoices, some investigation was taken up in respect of only 67 invoices and on no investigation / verification whatsoever has been conducted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freight vouchers and payment for the goods through banking channels. None of the recorded statements before the investigation officials have been reiterated before the Adjudicating authority in terms of Section 9D of the CEA 1944. Hence, even on this count, these statements lose the evidentiary value.Therefore, he submits that on this count the confirmed demand of Rs.18,69,286 is required to be set aside as legally not sustainable. 6. In respect of cenvat denial for 37 Invoices, the main ground of the Dept. is about the vehicle numbers not tallying with the Vahan Records of the State Transport Dept. He submits that within this allegation, there are various categories of reports from the Vahan Dept. In some cases, they have said that no records exist. This would mean that the digitisation was not completed for that vehicle. In such as case, the appellant cannot be penalized. In some cases, the vehicles have been said to be banned. If the vehicle owner still operates the banned vehicle and delivers the goods at his risk, how is the appellant expected to know or stop the same. In some case, the vehicles are termed as non-truck registration numbers. The appellant has recorded the detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rging Company for supply of such goods. payments were made by cheques 'RTGS which were reflected in the Bank Statement. viii) Whether payment of transportation has been made by the buyer? If so, details may be obtained. Noticee No. 1 made payment in cash against Inward Freight Vouchers to the Drivers who transported the goods and signed the vouchers. ix) bank statement of the party may be made available. Admittedly the Notice No. 1 submitted Bank statement on 23.04.13 before the investigating Officer alongwithParty Ledger and Inward Freight Vouchers relating to the said purchases. X) Sender Modus Operendi, if there be any detected, may be communicated to this end. M/s. Sree Ganesh Forging Company was allegedly found to have issued fake invoices for 245 Nos. of consignments without delivery of goods specified therein to facilitate the Noticee No.1 in availing inadmissible cenvat credit fraudulently. This alleged detection for all of 245 Nos. of consignment was made solely on the basis untrustworthy and undependable evidences relied upon only for 67 Nos. of consignments individually (as detailed in Annexure -I enclosed herewith). There is no evidence at all for rest 178 Nos. of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proves that there was no actual movement of goods, but the entire transaction was on paper only. Hence, he justifies the confirmed demand. 15. Heard both the sides and perused the appeal papers and further submissions made. 16. The first submission of the appellant is that while the demand is in account of 245 transactions, the investigation was taken up for only 67 transactions. On a specific query to the AR as to whether any verification was taken for all the transactions or not, he submits that as per the available records , there is nothing to indicate that in respect of 178 invoices, any investigation was taken up to carry forward the allegation of non-receipt of these goods. We are of the view that in such cases, the Revenue is required to be very thorough since the demand is based on each and every invoice . The allegation can sustain only on such invoices on which the investigation has taken place and non-receipt if conclusively proved. The investigation in respect of 67 invoices [about 27% of the total 245], even wherein the appellant has pointed several anomalies, cannot be generalized to simply interpolate same allegation for the balance 178 [about 73%] in order to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransport goods. There may be a possibility that such numbers are used by vehicle owners in order to avoid payment of Road and other taxes. But we cannot come to any definite conclusions. 19. Now coming to overall proceedings in this case, we find that the appellant has time again pleaded about the freight being paid by way of vouchers and payment to the vendor being made through banking channel. The relevant documents were provided to the investigating officials on the very first day. Therefore, there is nothing to assume that the appellant had enough time to prepare / cook up such entries in their books of account. The purchase transaction of 5759.70 MT on payment through banking channel to the extent of Rs.14.91 crores cannot be simply brushed aside. Similarly, the appellant has accounted for finished goods of 4477.73 MT during the period under consideration. All the facts are part of the statutory Returns like RG 23 A Part I, Part II and ER 1. This factual evidence on record cannot be ignored by clinging on to the 12 statements in respect 32 invoices and Vahan Dept s remarks in respect of 35 invoices. Therefore, we take the view that while the appellant has produced sufficient n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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