CCE Vs. MODERN LIGHTING SYSTEM

JUDGEMENT

(1.) The facts giving rise to this appeal are in brief, as under:

(2.) None appeared on behalf of the respondents, though notice for hearing had been sent well in time. There is also no request for adjournment from the respondents. In view of this, and since the amount involved is very small the matter was taken up for hearing.

(3.) I have carefully considered the submissions from both sides and perused the records. There is no dispute about the fact that vehicle number mentioned in each of six invoices is DL9CB -1541 which is a Maruti Van, owned by Shri Rajesh Jain, proprietor of M/s. Satvik Industries. Since under each invoice quantity of 500 to 600 kgs. of material as shown to have been transported and Maruti Van is not capable of transporting such huge quantity of material and, this fact has been accepted by Shri Rajesh Jain in his statement dated 2.4.2004, thus raises serious doubt about these transactions. It was also found that Shri Rajesh Jain in his statements dated 18.2.2003 and 6.3.2003 had clearly admitted that he had not sold any material and only issued the invoices and this statements have not been retracted by him. The fact with regard to the non -supply of material to the respondents is also supported by the fact that vehicle mentioned in the invoices is not capable of transporting the quantity mentioned in the invoices. In view of these circumstances, I hold that the finding of the Commissioner (Appeals) that the statement of Shri Rajesh Jain recorded at the back of the appellant, have very (sic) evidentiary value is not correct. Circumstances of this case clearly indicate that no material had been supplied and only invoices had been issued by M/s. Satvik Industries enabling the respondents to avail Cenvat credit. Since, this is a case of fraudulently availment of Cenvat credit without receiving any material, longer period of limitation is invokable and on this point also finding of the Commissioner (Appeals) is incorrect. In view of the above discussion, I hold that the impugned order of the Commissioner (Appeals) is not sustainable. The same is set aside and the order -in -original passed by the Asst. Commissioner is restored. The appeal filed by the Revenue is allowed.