Decided on February 27,2015

A.K. Multimetals Appellant
Commr. Of C. Ex. And S.T., Chandigarh -I Respondents

Referred Judgements :-



- (1.)Ashok Jindal, Member (J)
(2.)APPELLANT is in appeal against the impugned order wherein duty demand along with interest has been confirmed and equivalent penalty has been imposed on the allegation that appellant has taken Cenvat credit on paper transactions and has not physically received the goods. The facts of the case are that the investigation was conducted on one M/s. Jai Kara Steel Rolling Mills, Mandi, Govindgarh on 28 -2 -2005 and the gate keeper of the said factory submitted that the factory is closed from last one year and factory started working about 4 -5 months back and 9 -10 workers are working in the factory, only 2 -4 machines are in working conditions and there is no stock of finished goods as well as raw material and he has never seen any direct loading and unloading of material in the factory. As M/s. Jai Kara Steel Rolling Mills was dealing through registered dealers namely M/s. Jyoti Steels, the premises of M/s. Jyoti Steels was visited which was found locked. Thereafter, conducting more investigation a show cause notice was issued to the appellant on the basis that invoices issued by M/s. Jyoti Steels are only paper transactions and no goods have been received by the appellant. Therefore, show cause notice was issued to the appellant as well as M/s. Jyoti Steels which was adjudicated and availment of Cenvat credit on the invoices issued by M/s. Jyoti Steels was denied. Consequently, duty is demanded along with interest and penalty is also imposed on the appellant. Therefore, appellant is before me.
Shri Kamaljeet Singh ld. Advocate for the appellant appeared before me and submits that appellant is a manufacturer buyer of the impugned goods and they have received goods from M/s. Jyoti Steels against six invoices wherein the manufacturer is not M/s. Jai Kara Steel Rolling Mills. Therefore, on the basis of investigation conducted at the end of M/s. Jai Kara Steel Rolling Mills and concluding that as dealer is not existent demand is not sustainable. As they have received the goods in their factory under the cover of duty paid invoices which shows the manufacturer and supplier of the goods and they have paid the amount against this invoices through cheque, therefore, without conducting investigation at the end of transporter and manufacturer supplier or physical verification of the stock. The demand is not sustainable. To support this contentions he relied on the decision of Telson Mill, Final Order No. 976/2012 -SMV, dated 17 -7 -2012 which has been confirmed by the Hon'ble P & H High Court reported in : 2015 (315) E.L.T. 415 (P & H). Shri Juhi Alloys v. C.C.E. - : 2013 (296) E.L.T. 533 (Tri. -Del.) upheld by Hon'ble High Court of Allahabad vide Order No. 21/2014, dated 15 -1 -2014, : 2014 (302) E.L.T. 487 (All). Gyan and Gyan Casting Ltd., Final Order No. A -5107/2014, dated 15 -1 -2014.

(3.)ON the other hand ld. AR opposes the contention of the ld. Counsel and submits that in this case the first stage dealer who issued the invoice is nonexistent. Therefore, question of receipt of goods by the appellant does not arise. He further submits that enquiries were revealed which shows that first stage dealer was not having any godown to store the goods. Moreover he remained non -cooperative with the departmental officer during the course of the investigation itself. Therefore, burden casts on the appellant to prove that they have received goods physically in their factory which they failed to do so without any tangible evidence. He also relied on the statement of M/s. Jyoti Steels, an authorized representative of the appellant. To support his contention he relied on the decision in the case of Neelkanth Steel Agro Industries, Final Order No. A/54432/2014 -SM (BR), dated 29 -10 -2014 [ : 2015 (317) E.L.T. 322 (Tri. - Del.)] and Sidh Industries v. C.C.E., Chandigarh - : 2010 (257) E.L.T. 454 (Tri. -Del).

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