Commissioner Of Central Excise vs M/S. Dhawan Steel Industries

[Arising out of Order-In-Appeal No. 109/CE/LDH/2011 dated 26.4.2011 passed by Commissioner of Customs, Central Excise (Appeals) Chandigarh]

For approval and signature:

Honble Mr 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?

Commissioner of Central Excise Appellants

Ludhiana

Vs.

M/s. Dhawan Steel Industries Respondent

Appearance:

Shri A K Dhawan, AR for the Appellants

None for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 3.03.2015

ORDER NO. FO/ A 50585 /2015-Ex(SM)

Per Ashok Jindal :

Revenue is in appeal against the impugned order wherein Commissioner (Appeals) allowed the Cenvat credit taken by the respondent on the strength of duty paying documents issued by first stage dealer. The facts of the case are that the investigation was conducted at the end of dealer namely, M/s. S K Garg & sons, Motia Khan, Mandi Gobindgarh. During the course of investigation, it was found that dealers is non-existence firm and inquires revealed from the landlords that he has never let out the premises to M/s. S K Garg and sons. And thereafter investigation were conducted at the premises of appellant wherein it was found that appellant has procured the goods from M/s. S K Garg and sons, first stage dealer. As it was presumed by the department that as M/s. S K Garg and sons is non-existence firm, therefore the appellant has not procured the goods and there is only paper transaction, therefore show cause notice was issued to deny the Cenvat credit on the strength of invoices issued by M/s. S K Garg and sons. The matter was adjudicated, Cenvat credit was denied by the learned adjudicating authority. Consequently, demand of duty was also confirmed along with interest and penalty was also imposed. On challenge of said order before learned Commissioner (Appeals), he set aside the order holding that Revenue has not produced any tangible evidence to show that respondent has not received any goods but paper transaction. Aggrieved from the said order, Revenue is before me.

2. Learned AR submits that in this case, M/s. S K Garg and sons, first stage dealer is a non existing firm that has been proved by the statement given by landlord of the premises who states that he never let out the premise to M/s. S K Garg and sons. Therefore, M/s. S K Garg and sons was not having any storage facility . In these circumstances, M/s. S K Garg and sons have issued only invoices and not physically delivered the goods to the respondents. Therefore impugned orders is to be set aside.

3. None appeared on behalf of the respondents nor any request of the appellants has been received. Appeal is taken up for disposal on merits.

4. After considering the submissions made by learned AR and on perusal of the record, I find that the invoices issued by M/s. S K Garg and sons giving details of transporters as well as manufacturer supplier of the goods. No investigation was conducted at the end of manufacturer supplier as well as transporter of the goods to reveal the truth. The case has been made against the respondents on the presumption that supplier dealer is not existing firm therefore, there was only paper transaction. Cases cannot be booked merely on the presumption and assumption, there should be corroborative evidence to prove the allegations. In this case, allegation has not been supported with tangible evidence. Therefore, learned Commissioner (Appeals) has rightly set aside the proceedings against the respondents. In these circumstances, I do not find any infirmity in the impugned order and same is upheld. Appeal filed by the Revenue is dismissed.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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