C.C.E. Delhi-Iii vs M/S. P.P. Oxide

[Arising out of Order-in-Appeal No. 45/SSS/GGN/07 dated 20.03.2007 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Gurgaon].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E. Delhi-III .Appellants

Vs.

M/s. P.P. Oxide .Respondent

Appearance:

Shri B.B. Sharma, DR for the Appellant

Shri Bipin Garg, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 22.06.2015

FINAL ORDER NO. 51989/2015-EX(SM)

Per Ashok Jindal:

The Revenue is in appeal against the impugned order wherein Commissioner (A) has dropped the demand against the respondent.

2. The brief facts of the case are that respondent is manufacturer of Zinc Oxide. An investigation was conducted at the end of the supplier of the goods i.e. the first stage dealer M/s. R. K. Enterprise owned by Shri R. K. Gupta. On the basis of the statement dated 16.01.2001 the case has been booked against the respondent that they are receiving only cenvitable invoices not the goods. In these set of facts an investigation was conducted at the end of the respondent wherein all inputs, finished goods, statutory records were found in order. Thereafter, the show cause notice was issued to the respondent to deny Cenvat Credit on the basis of the invoices issued by M/s. R. K. Enterprises. Consequently, demand of duty along with interest and for imposition of penalty a show cause notice was adjudicated. Demands proposed in the show cause notice were affirmed. Aggrieved from the said order respondent appeared before the Ld. Commissioner (A), who set aside the proceedings against the respondent. Aggrieved from the said order Revenue is before me.

3. The Ld. AR submits that in this case Ld. Commissioner (A) has added while concluding his findings that no case is made out against the respondent. In fact, there were enough corroborative evidence in the form of the statement of transporters and the statement of Shri R. K. Gupta, proprietor of M/s. R. K. Enterprises. Therefore, impugned order be set aside.

4. Heard the parties. Considered the submission.

5. In this case, it is no doubt, case has been booked on the statement of Shri R. K. Gupta proprietor of M/s. R. K. Enterprises who initially stated that he has merely issued the cenvitable invoices, on the basis of which respondent has taken the credit. In fact the respondent used to give payment of these invoices through cheques and equivalent amount of cash has been returned. It is also a fact on record an investigation was conducted at the end of the respondent also wherein nothing incrimatory was found. Further, from the proceedings it is revealed that the respondent sought cross examination of Shri R. K. Gupta as well as transporters of the goods but Adjudicating Authority inspite of giving cross examination has gave its finding that charges has been alleged on the basis of corroborative evidence, therefore, no cross examination is to be given. In fact, the statement of Shri R. K. Gupta has been retracted on the first available opportunity before chief metropolitan Magistrate. These things have not been considered by the adjudicating authority while adjudicating the matter.

6. I have perused the records.

7. On perusal of the record one of the transporter states that he is having three tempos and when these tempos used to transport the goods either he personally drives the tempos or he will be accompanying the driver of the tempo. No prudent men can drive three tempos at a moment. Moreover, he cannot be present in three tempos at a time. This statement has been relied upon by the Adjudicating Authority in support his case of non receipt of the goods by the respondent. As no cross examination has been awarded to the respondent the Ld. Commissioner (A) has rightly set aside the proceedings initiated in the show cause notice impugned.

8. Therefore, I do not find any infirmity with the impugned order. Same is upheld. Appeal filed by the Revenue deserves no merits. Hence dismissed.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

2

E/1233/2007-EX(SM)