JUPITER RADIOS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

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

(2.) SHRI N. Mullick, Advocate, the learned Counsel for the Appellant, pleaded that the case is based only on the statements of Shri Rajesh Jain, Proprietor of M/s. Satvik Industries, while neither Shri Rajesh Jain nor Satvik Industries have been made a party to these proceedings, that on inquiry in respect of the M/s. Satvik Industries, it was found that they had some machinery installed and had been employing some workers as well as supervisors and there was some manufacturing activity, that in view of this all the invoices issued by M/s. Satvik Industries could not be fake, that the statement of Shri Rajesh Jain admits the sale of the goods to various parties including the Appellant company, that the statement of Shri Rajesh Jain that he was issuing only invoices without sending any material and that the payments being received by him by cheques was being returned to the customers after deducting his commission, is not supported by any evidence in form of bank statements and that in view of this, the impugned order upholding the CENVAT credit demand and imposing penalty on the Appellant is not correct. With regard to the allegation that the vehicles used for transporting the goods were not capable of transporting the same, it was submitted that the inquiry with the transport authorities has not been relied upon and is not part of the relied upon documents and hence no cognizance can be taken on the same.

(3.) I have carefully considered the submissions from both the sides. The basis of this case is the statement dated 18 -2 -2003 of Shri Rajesh Jain, wherein he has stated that he was issuing only invoices without supplying any material to various parties including the Appellant company, that he had never delivered any material to the Appellant company with whom he had understanding that they would pay 2.5 per cent commission of the value mentioned in the invoices on the basis of which they could take the CENVAT credit and that as per the understanding with his customers (including the Appellant), he used to receive the payment for the goods shown to have been supplied under the invoices without supplying any goods and after encashing the cheques, he used to return the amount in cash after deducting his commission. This statement of Shri Rajesh Jain recorded under Section 14 of Central Excise Act has not been retracted by him and the facts stated in this statement have been confirmed in his further statement dated 6 -3 -2003. Besides this, it is also found that the invoices issued by M/s. Satvik Industries to the Appellant bear the registration number of the vehicle in which the goods are shown to have been transported and while two of such registration numbers on inquiry with the transport authorities were found to be bogus, the remaining registration numbers were found to be of the Maruti cars which are not capable of transporting the goods which are shown to have been supplied. No explanation has been given by the Appellant in this regard. Tribunal in the case of Ranjeev Alloys Ltd. v. CCE 2009, (247) ELT 27 (P&H.) has held that when an Assessee claims to have been received goods under invoice and has taken CENVAT credit on the basis of sale invoices and the registration number of the vehicle mentioned in the invoice is found to be bogus or the vehicle is found to be small vehicle not capable of transporting the goods mentioned in the invoices, the burden of the proving that the goods mentioned in the invoice had actually been received by the Assessee, is on the Assessee who had taken CENVAT credit on the basis of such invoice. In view of the registration numbers being fake or being of the vehicles not capable of transporting the goods mentioned in the invoices and the statement of Shri Rajesh Jain, Proprietor of the supplier company clearly mentioning that no material had been supplied and only the invoices had been issued, the burden of proving that the goods had actually been received, would be on Appellant which has not been discharged by producing cogent evidence regarding receipt of the goods. In view of this, I hold that the Appellant had taken CENVAT credit on the basis of fake invoices without receiving any goods. I, therefore, do not find any infirmity in the impugned order. The appeal is dismissed.