M/S. Jyoti Industries vs C.C.E. & S.T. Ludhiana

[Arising out of Order-in-Appeal No. LUD-Excus-000-Appl-418-13-14 dated 03.07.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Ludhiana].

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?

M/s. Jyoti Industries .Appellants

Vs.

C.C.E. & S.T. Ludhiana .Respondent

Appearance:

Shri Kamaljeet Singh, Advocate for the Appellant

Shri A.K. Dhawan, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 09.04.2015

FINAL ORDER NO. 51163/2015-EX(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order denying Cenvat Credit on inputs procured by them.

2. The facts of the case are that the appellant purchased Ferro alloy from M/s. Gupta Enterprises, the first stage dealer and availed Cenvat Credit on the invoices issued by M/s. Gupta Enterprises. An investigation was conducted at the end of M/s. Gupta Enterprises wherein it is stated that they have supplied invoices to the appellant without goods. On the basis of the statement of M/s. Gupta Enterprises verification at the end of transporter was also conducted wherein it was found that the vehicle involved are not capable to transport the goods. Therefore, it was alleged against the appellant that they have taken the Cenvat credit on the strength of invoices without receiving the goods. In these circumstances, the show cause notice was issued to deny the Cenvat Credit to the appellant. Consequently, demand on duty along with interest and imposition of penalty. Both the lower authorities denied the Cenvat Credit and confirmed the demand of duty along with interest and penalty was also imposed.

3. The ld. Counsel for the appellant submits that no statement of the appellant has been recorded. Moreover, the allegation is based on the transporters statement that vehicle are not capable of transporting the goods. In fact, quantity is so less, i.e. 100 kgs / 300 kgs which can be transported by auto rickshaw.

4. Moreover, the appellant have admitted that they have received the goods and taken the Credit. Payment has been made to M/s. Gupta Enterprises through cheque only. Therefore, without any corroborative evidence Cenvat Credit cannot be denied.

5. On the other hand, Ld. AR submits that M/s. Gupta has categorically stated that they have issued invoices and not supplied the goods. Moreover, quantity of 1500 kgs, 2000 kgs and 3600 kgs are not capable to be transported by auto rickshaw. Therefore, Cenvat Credit is rightly denied.

6. Heard the parties. Considered the submissions.

7. In this case the denial of Cenvat Credit is based on the statement of M/s. Gupta Enterprises that they have not supplied the goods and only issued the invoices. On verification of the transporting vehicle which was found to be either nonexistent or not capable of the transportation of the goods. But no corroborative evidence have been produced by the Revenue from where the appellant procured the goods, if goods were supplied to the appellant along with invoices. No stock taking was done at the end of the appellant. Therefore, without any supportive evidence Cenvat Credit merely on the statement of M/s. Gupta and on the allegation of transporting vehicle cannot transport such goods, Cenvat Credit cannot be denied. Therefore, I hold that appellant has correctly taken Cenvat Credit.

8. Consequently, impugned order is set aside. Appeals are allowed with consequential relief if any.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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E/59946/2013-EX(SM)