Adarsh Kumar Goel, J. - (1.) THIS appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (in short "the Act") against order dated 24.1.2008 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal"), claiming following substantial questions of law: (i) Whether the Hon'ble Tribunal is correct in giving contrary ruling on similar facts, when on similar facts, recoveries of MODVAT Credit were upheld by the Hon'ble Tribunal in the cases of M/s Indian Special Castings Ltd. Ludhiana vide Final Order No. 664/2008 -SM (BR) dated 17.4.2008 reported as, 2008 (227) ELT 332 (T -DEL), and M/s HBR Steel Corporation, Ludhiana vide Final Order No. 1579 -1580/07 -SM (BR) dated 28.9.2007? (ii) Whether the Hon'ble Tribunal has erred in appreciation of total facts and holding absence of any evidence when the transportation of the goods has not been proved by the party concerned?
(2.) THE Assessee is a registered dealer under the Act and is availing CENVAT credit on the inputs for manufacture of iron and steel products. The inputs are purchased from Tata Iron and Steel Company (TISCO). The adjudicating authority issued a show cause notice alleging that numbers of the vehicles entered in the record were fictitious from which it was inferred that the inputs were never purchased by the Assessee and CENVAT credit was wrongly availed. After consideration, order -in -original dated 10.1.2006 was passed confirming the demand and imposing penalty which was affirmed on appeal by the Commissioner (Appeals). However, on further appeal, the Tribunal set aside the finding of wrong availing of CENVAT credit on the inputs. It was held that the inputs were duly purchased from TISCO by making payment through banking channels which were not shown to be fake and, thus, CENVAT credit could not be denied nor penalty could be justified. The finding of the Tribunal is as under: I find that in the present case the goods were manufactured by TISCO and the same was supplied to consignment agent M/s Adhunik Ferro Alloys the Appellant has to place orders with advance payment to TISCO and thereafter TISCO issued release order to their consignment agent and the goods were released to the Appellant. There is no evidence on record to show that the payments were not received by TISCO regarding sale of goods in question. In the case of Viraj Alloys Ltd. (supra) relied upon by the Revenue, the manufacturer failed to establish that inputs mentioned in the invoices were received in the factory. The facts of the present case are different. In the present case, the Appellant made payment regarding the goods directly to the TISCO and thereafter inputs were released by their consignment agent. There is no evidence on record to show that TISCO is also connived with the Appellant by issuing duty paying documents only. The Tribunal in the case of A.K. Pvt. Ltd. v. CCE, Final Order No. A/1458 -1459/05 dated 12.7.05 set aside the demand and penalties which was imposed on the same grounds. In view of the facts of the present case as the payments were directly made to TISCO regarding the goods in question and in view of re -earlier decision of the Tribunal in the case of A.K. Alloys (supra) the impugned order is set aside and appeals are allowed. Learned Counsel for the Appellant is not aware about the status of earlier judgment of the Tribunal in the case of A.K. Pvt. Ltd. v. CEE, Final Order No. A/1458 -1459/05 dated 12.7.2005 which has been followed in the present case. In any case, the finding recorded by the Tribunal that the inputs were duly supplied to the Assessee by the TISCO which justified availing of CENVAT credit is a finding of fact which is not shown in any manner to be perverse. No substantial question of law arises.
(3.) ACCORDINGLY , the appeal is dismissed.;