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TMI Blog2024 (9) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... he factory of the plaintiff M/s AIPL. The conclusion arrived in the impugned order that the CENVAT credit taken on the basis of invoice issued by M/s AIPL, Ludhiana is without a prescription of material is contrary to the factual position, as indicated above. Further, during cross examination of the manager Shri Jaswantbhai Shah, he had clearly stated that he had received the invoice along with the material from M/s AIPL, Ludhiana. Therefore, there are no basis or any other evidence for coming to a conclusion that the receipt of copper ingots etc., by the appellants from M/s AIPL, Ludhiana, is improper. The Tribunal in case involving similar facts and for the same disputed supplier M/s AIPL, Ludhiana, in the case of M/S. STI INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE S.T., VAPI [ 2015 (7) TMI 224 - CESTAT AHMEDABAD ] have held that the CENVAT credit cannot be denied, as the documents produced show that M/s AIPL was in existence and supplied the material with invoices. Thus, the appellants have duly availed the CENVAT credit, there are no merits in the impugned order to the extent of it had denied CENVAT credit facility and in confirmation of the adjudged demands on the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aggrieved with the said order, the appellants had filed an appeal before the Tribunal, in the first round of litigation. After carefully examining the facts of the case and the arguments raised by both sides, the Tribunal had remanded the matter back to the adjudicating authority with the direction to conduct cross examination of the witnesses and thereafter pass a speaking order by issue of Final Order No. A/88346- 88348/17/SMB dated 25.05.2017. 2.4 In pursuance of the above directions of the Tribunal, the original authority have provided cross examination of 2 witnesses out of the total 7 witnesses, and on the basis of the available evidences had confirmed the adjudged demands by issue of Order in Original dated 06.06.2018. Feeling aggrieved with the above order, the appellants have preferred an appeal before the Commissioner (Appeals), Mumbai. After giving a personal hearing to the appellants on 18.03.2020, learned Commissioner (Appeals) had given a finding that the original authority had come to the conclusion about the involvement of the appellants in the case of misuse of Excise invoices by availing inadmissible CENVAT credit, based on panchnamas, statements of various wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be used unless witnesses unless the persons who have given such statements are cross examined. In view of this statutory provision, the adjudicating authority must have allowed the cross examination of the witnesses which he failed to do so, thereby the principle of natural justice was not complied and the matter was remanded to the adjudicating authority for passing a fresh order. 6. I find that the adjudicating authority, in de novo adjudication out of the total seven witnesses was able to provide cross examination of only two witnesses to the appellants viz., Shri Jaswantbhai Shah, Manager of Star Metal Tubes Ltd., and Shri Arvind Ghevarchand Jain, Broker in metal market, as the other five witnesses did not turn up. Out of this two witnesses, Shri Jaswantbhai Shah, Manager during cross examination had confirmed that he had received the invoice of M/s Annapurna Impex Pvt. Ltd., Ludhiana along with the material, and therefore he is under bonafide belief that the goods were received from them. Shri Arvind Ghevarchand Jain, Broker had stated that he had studied upto 10th Standard and can write and read English. He is aware of the existence of the job worker M/s Mars Internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises : i. Copper Melting Furnace. ii. Copper rod manufacturing machine. iii. Copper point flat and profile machine. iv. Drawing machines. v. High Speed drawing machines. vi. Wielding machines. vii. Bar winding machines. viii. Winding machines. ix. Thin super enamel machines. x. Copper annealed furnace. xi. Blowers-2, one of Champion make with manufacturing date of 09.06.1998. xii. Two generator sets of 75 K.W.A and 16 K.W.A. xiii. Picking tank. xiv. Drilling machine. xv. Vacuum machine. xvi. U.P.S. In addition to the said machines, there were two copper rods, Empty cones, finished products such as copper were upto 50 Kg approximately was also lying there. All the said machinery seemed to be in good working condition but at that time, not a single machine was working and when I enquired about the same from Shri Navneet Aggarwal, M.D. of the plaintiff company, he told me that since the license of Central Excise Department was suspended of the Plaintiff Company by the Order of the said Department dated 17.07.2006, they have stopped the working of the company from that very date. The machinery lying installed there seemed to be installed some eight to ten years back and I am of the str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that as per general rule of law, it is the bounden duty of the purchaser to make all such necessary enquiries and to ascertain all the facts relating to the property to be purchased prior to committing in any manner and if he does not, it is at his peril. In the present case, I find that appellant produced documents that M/s. Annapurna was in existence during the material period as established by their invoices and the Central Excise monthly returns. So, the appellant has discharged their responsibility and therefore, Cenvat credit availed on the basis of invoices of M/s. Annapurna cannot be denied. 11. In view of the above discussions, the impugned orders cannot be sustained. Accordingly, the impugned order is set aside. The appeal filed by the appellant is allowed with consequential relief. 8.2 For the reasons stated above, in the above order and as per the factual matrix of the case discussed by me in the preceding paragraphs, where the appellants have duly availed the CENVAT credit, I do not find any merits in the impugned order to the extent of it had denied CENVAT credit facility and in confirmation of the adjudged demands on the appellants. 9. In view of the foregoing dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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